-          :  borrow, 
this  book  will  plr.ns 
not  deface  it  with 
pon  or  pencil  narks. 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 

GIFT  OF 

Jchr  B  Surr 
G.W.  and  Wm  Hellyer 


REPORTS    OF    CASES 

ADJUDGED 


IN    THE 


COURT  OF  CHANCERY 


OF 


NEW    YORK. 


COUN8ELLOB  AT  LAW. 


VOL.    III. 

CONTAINING  THE  CASES  FROM  OCTOBER,   1817,  TO  DECEMBER,   1818, 
INCLUSIVE. 


THIRD  EDITION,  REVISED  AND  CORRECTED. 

ANNOTATED,    BY 

STEWART  RAPALJE. 


NEW  YORK: 
BANKS  &   BROTHERS,   LAW   PUBLISHERS, 

No.  144  NASSAU   STREET. 

ALBANY:    475    BROADWAY. 

1883. 


5397 


v,  3 


Entered  according  to  Act  of  Congress,  in  the  year  one  thousand  eight  hundred  and 

seventy-three, 

BY  BANKS  &  BROTHERS, 
in  the  Office  of  the  Librarian  of  Congress  at  Washington. 


Entered  according  to  act  of  Congress,  in  the  year  one  thousand  eight  hundred  and 

eighty-three, 

BY  BANKS  &  BROTHERS, 
in  the  office  of  the  Librarian  of  Congress  at  Washington. 


TABLE 


THE      CASES     REPORTED. 


%*  The  letter  v.  follows  the  name  of  the  plaintiff. 


A. 

Anderson,  Roberts  v 371 

Astor,  Gardner  v • 53 

Aymar  v.  Roil', 49 


B 

Barrow  v.  Rhinelander, 120.  614 

Beach,  Haines  v 459 

Beekman  v.  Peck, 415 

v.  Waters, 410 

Berry,  Thompson  v 395 

Boyd  v.  Murray, 48 

Bradish  v.  Gibbs, 523 

Bradford  v.  Kimberly, 431 

Brown  v.  Rickets, 63.  553 


c. 

Catlin  v.  Harned, 61 

Codrington,  Cumberland,  Duke  of,  v 229 

Clason,  Cooper  v 521 

Consequa  v.  Fanning 364.  587 

Cooper,  Young  v 295 

v.  Remsen, 382 

v.  Clason, 521 

Cook  v.  Mancius, 427 

Cumberland,  Duke  of,  v.  Codrington,. 229 

3 


609366 


TABLE  OF  CASES 


n 

Dale,  Williamson  v 290 

Decouche  v.  Savetier, 190 

Demarest  v.  Wynkoop, 129 

Dcpau  v.  Moses, 349 

Dennis,  Mills  v 367 

Denning  v.  Smith, 332.  409 

Duncan  v.  Lyon, 351 

Dunkley  v.  Van  Buren, 330 

Dunn j  Ferine  v 508 


E. 

Eaton,  Pendleton  v 69 

F. 

Fanning,  Consequa  v 364.  587 

G. 

Gardner  v,  Astor, 53 

Gihbs,  Bradish  v 523 

Gillet,  Schoonmaker  v 311 

Goodrich  v.  Pendleton, 384.  520 

Gray  v.  Murray, 167 

Green,  M'Kay  v 56 

,  Phelps  v 302 


H. 

Ilains  v.  Beach, 459 

Hanks,  Matter  of, 567 

Harnecl,  Catlin  v 61 

Halsey,  Stackhouse  v '. 74 

Hodgson,  Kirk  v 400 

Tlubbs,  Livingston  v 124 


J. 

Jaques,  Methodist  Episcopal  Church  v 1.  7" 

4 


TABLE  OF  CASES. 


K. 

Kane,  Livingston  v 22 1 

Kauman,  Messonnier  v 3.  66 

Kimberly  v.  Sells, 467 

,  Bradford  v 4;H 

King  v.  King, •'>•'>! 

Kirk  v.  Hodgson, 400 


L. 

Lansing  v.  M'Pherson, 424 

,  Whipple  t; 612 

Lawrence  v.  Dale, 23 

Lewis  v.  Lewis, 519 

Livingston  v.  Livingston, 51.  148 

v.  Hubbs, 124 

v.  Kane, 224 

v.  Newkirk 312 

Reade  v 481 

Lyon,  Duncan  v 351 


M. 

Mancius,  M'Intyre  v 45 

,  Cook  v 427 

Mason  v.  Roosevelt 627 

Mattocks  v.  Tremain, 75 

Morrill,  Shepherd  v 423 

Messonnier  v.  Kauman, 3.  6(5 

Methodist  Episcopal  Church  v.  Jaques, 1.  77 

M'Intyre  v.  Mancius, 45 

M'Kay  v.  Green, 56 

M'Kinnan  v.  Thompson 307 

M'Menomy  v.  Murray, 435 

v.  Roosevelt, 446 

M'Pherson,  Lansing  v 424 

Moody  v.  Payne, 294 

Mills  v.  Dennis, 367 

Morris  v.  Parker, 297 

Moses,  Depau  v 349 

Murray,  M'Menomy  v 435 

Murray,  Boyd  v 48 

,  Riggs  v 16C 

,  Gray  v 167 

v.  Toland, » 569 


1'ABLE  OF  CASES 


N. 

Newkirk,  Livingston  v 312 

Nicoll  v.  Roosevelt,  • GO 


o. 

Olcott,  Tripler  v 473 

P. 

Parker,  Morris  v 297 

Payne,  Moody  v 294 

Pearsall,  Rayner  v 578 

Peck,  Beekman  v 415 

Pendleton  v.  Eaton, 69 

:,  Goodrich  v 384.  520 

Perine  v.  Dunn, 508 

Phelps  v.  Green, 302 

Q- 

Quackenboss,  ex  parte, 408 


R. 

Rayner  v.  Pearsall, 573 

Reade  v.  Livingston, 481 

Remsen,  Cooper  v 382 

Rhinelander,  Barrow  v 120.  614 

Ricketts,  Brown  v 63.  553 

Riggs  v.  Murray, 160 

Roberts  v.  Anderson, 371 

,  Matter  of, 43 

lloff,  Aymar  v 49 

Roosevelt,  Nicoll  v 60 

,  M'Menomy  v 446 

,  Mason  v 627 


s. 

Salisbury,  Matter  of, 347 

Sanger  v.  Wood, 416 

Savetier,  Decouche  v 19C 

6 


TABLE  OF  CASES.  7 

Schatzel,  Woodward  v '112 

Schoonmaker  v.  Gillet, 311 

Sells,  Kim  berly  v 4(57 

Sharp  v.  Sharp, 407 

Shepherd  v.  Merrill, 423 

Sherwood,  Troup  v 558 

Shottenkirk  v.  Wheeler, 275 

Smith,  Denning   v 332.  4()'J 

v.  West, 303 

Stackhouse  v.  Halsey, 74 


T. 

Tremain,  Mattocks  v 75 

Thompson,  M'Kinnan  v 307 

».  Berry, 395 

Tripler  v.  Olcott, j 473 

Toland,  Murray  v 569 

Troup  v.  Sherwood, 558 


V. 

Van  Bergen  v.  Van  Bergen, 282 

Van  Buren,  Dunkley  v 330 


w. 

Waters,  Bcekman  v 410 

West,  Smith  v 363 

Wheeler,  Shottenkirk  v 275 

Whipple  v.  Lansing 612 

Woodward   v.  Schatzel, 412 

Wood,  Sanger  v 416 

v.  Wilkins, 65 

Williamson  v.  Dale, 290 

Wilkins,  Williams  v 65 

Wynkoop,  Demarest  v 129 


Y. 

Young  v.  Cooper, 

7 


CASES 


ADJUDGED      IN 


ar  9  e 


at 


NEW-YORK 


JAMES  KENT,  ESQ.,  CHANCELLOR. 


METHODIST  EPISCOPAL  CHURCH  and  others  against       1817. 
JAQUES  and  others. 


METHO.  EPIS 
CHURCH 

v. 
JAQUES. 


Where  the  fund  was  clear,  and  the  rights  of  the  respective  parties  as- 
certained, the  Court  directed,  pending  the  account,  a  part  of  the  mon- 
eys to  be  paid  to  the  solicitor  of  infant  plaintiffs,  towards  further  de- 
fraying the  past  and  future  expenses  of  the  suit,  and  the  interest  on 
the  residue  of  the  portion  coming  to  such  infants,  to  be  paid,  as  it 
accrued,  to  their  mother,  for  their  necessary  maintenance  and  edu- 
cation. 


PETITION,  stating  the  substance  of  the  pleadings  and  October  i. 
decretal  orders  and  sales,  and  other  proceedings  in  this  cause, 
and  that  the  cause  now  stands  on  exceptions  to  the  master's 
report,  and  that  the  defendant  threatens  to  prosecute  this 
cause  further  by  appeal,  and  that  all  the  plaintiffs  stand  in 
need  of  pecuniary  aid,  to  enable  them  to  carry  on  this  ex- 
pensive litigation,  and  that  the  infants,  who  are  plaintiffs,  are 
in  want  of  moneys  for  their  necessary  maintenance  and  edu- 
cation, and  stating  that  a  large  sum  of  money  is  now  in 
court,  accumulating  in  the  hands  of  the  assistant  register,  and 
that  one  third  of  it  belongs,  of  right,  according  to  the  said 
decretal  orders,  to  the  trustees,  *and  one  third  of  it  to  the  [  *  2  ] 

infants,  and  the  other  third  to  the  defendant  J.  D.  Jaques; 
and  praying  that  one  third  of  the  said  funds  in  the  hands  of 
the  assistant  register,  to  the  credit  of  this  cause,  may  be  paid 
to  the  said  trustees,  and  a  reasonable  portion  of  one  other 
third,  to  the  solicitor  and  counsel  of  the  said  infants,  towards 

VOL.  Ill  2  9 


2  CASES  IN  CHANCERY. 

Ifcil7.  *ue  Past  an(i  future  expense  of  this  cause,  and  that  the  in- 
x^^-^-^x  come  and  produce  of  the  residue  of  the  said  third  part;  may 
METHO.  EPIS.  be  appropriated  towards  their  requisite  maintenance  and 
education,  and  that  a  receiver  may  be  appointed,  to  take  the 
securities,  and  collect  the  debts  due  to  the  estate  of  Mori/ 
Jaques,  deceased,  for  the  benefit  of  the  parties  to  this  suit, 
who  are  her  residuary  legatees,  &c. 

litggs  and  Harrison,  for  the  petitioners.  They  cited  Roun- 
dell  v.  Currer,  6  Vesey,  jun.  250  ;  Shortbridge' 's  case,  12 
Vesey,  28,  and  13  Vesey,  92 ;  showing  that  moneys  have  been 
paid  out  of  Court  to  the  parties,  when  it  was  ascertained,  as 
it  is  here,  that  the  moneys  asked  for  will  be  coming  to 
them,  &.c. 

T.  A.  Emmet,  contra. 

THE  CHANCELLOR  directed,  that  the  third  part  of  the  pro- 
ceeds of  one  third  part  of  the  sales  of  the  real  estate,  in  the 
petition  mentioned,  be  paid  to  the  trustees,  and  that  out  of 
the  stock  and  funds  in  Court,  one  third  part  be  placed  to  the 
credit  of  the  infants,  and  that  1,000  dollars  be  paid  thereout 
to  their  solicitor,  towards  the  past  and  future  expenses  of  the 
suit,  and  that  the  interest  and  income  of  the  residue  of  the 
said  one  third  part  be  paid,  as  it  arises,  to  their  mother,  for 
their  necessary  maintenance  and  education. 

Order  accordingly. 
10 


CASES  IN  CHANCERY. 


*3 


*MESSONNIER  against  KAUMAN,  GOMPERTS.  and 
others. 


1817. 


G.  assigned  a  cargo  and  tne  proceeds,  &c.  to  K.  in  trust,  for  the  benefit 
of  K.  and  M.,  but  M.  was  to  be  Jirst  secured  and  satisfied  for  his  ad- 
vances to  G.,  to  enable  G.  to  pay  certain  bills  accepted  by  him,  drawn 
and  negotiated  by  M.,  to  pay  for  the  cargo,  &c.  G.  and  K.,  after- 
wards, with  the  assent,  as  they  alleged,  of  the  agent  of  M.,  but  with- 
out the  knowledge  or  consent  of  M.,  cancelled  the  deed  of  assignment, 
which  was  dated  the  7th  of  February ;  and  executed  another  deed  of 
assignment,  on  the  28th  of  February,  to  K.  and  S.,  in  trust,  to  pay  M. 
and  K.,  and  certain  other  creditors  named  therein ;  and  in  case  the 
fund  proved  insufficient  to  pay  all  the  debts  specified,  that  then  it 
should  be  distributed  ratably,  between  M.,  K.,  and  the  other  creditors 
named,  in  proportion  to  their  respective  demands ;  and  the  fund 
eventually  proved  insufficient  to  pay  all  the  debts  specified  in  the 
second  assignment : 

Held,  that  the  cancelling  of  the  first  assignment  by  G.  and  K,  was  fraud- 
ulent, as  regarded  the  plaintiff",  M.,  who  was,  therefore,  entitled  to  the 
full  benefit  of  that  assignment,  and  must  be  first  and  exclusively  paid, 
out  of  the  fund,  his  whole  demand  ;  and  that  the  second  assignment, 
so  far  as  it  was  inconsistent  with  the  first,  or  as  to  the  right  of  the 
plaintiff*  to  be  first  paid,  was  void. 

THE  bill  was  filed  by  the  plaintiff  against  Gompert  S. 
Gomperts,  Israel  B.  Jacobs,  and  Seixas  Nathan,  partners  in 
trade  at  New-  York,  under  the  firm  of  Gompert  S.  Gomperts 
and  Co.,  Joseph  Kauman,  S.  Jones,  jun.,  and  certain  creditors 
of  G.  S.  G.  and  Co.  The  bill  stated,  that  on  the  12th  of 
December,  1810,  G.  Seixas,  the  agent  of  G.  S.  G.  and  Co.,  ap- 
plied to  the  plaintiff,  (who  is  a  merchant  residing  at  Balti- 
more,} to  aid  him,  by  his  credit  and  endorsements,  in  loading 
the  ship  Eastern  Star,  then  at  Baltimore,  which  the  plaintiff 
consented  to  do.  The  agent  of  G.  S.  G.  and  Co.  accordingly 
drew  five  bills  of  exchange,  at  60  and  90  days,  amounting 
to  14,090  dollars,  and  another  bill  for  904  dollars,  for  dis- 
bursements and  commissions,  on  G.  S.  G.  and  Co.,  in  favor  of 
the  plaintiff,  and  endorsed  by  him,  which  six  bills  were  accepted 
by  G.  S.  G.  and  Co.,  and  the  vessel  sailed  on  her  voyage  with  a 
cargo  purchased  with  the  aid  of  the  five  bills.  Before  any 
of  the  bills  became  payable,  the  defendant  Kauman,  in  behalf 
of  G.  S.  G.  and  Co.,  by  *letter,  dated  January  31st,  iSll,  ap- 
plied to  the  plaintiff,  and  in  their  name  promised  that  if  the 
plaintiff  would  forward  the  necessary  funds  to  K.,  to  enable 
him  to  take  up  the  bill  for  904  dollars,  payable  the  5th  of 
February,  and  the  bills  for  4,000  dollars,  and  1 ,900  dollars, 
payable  on  the  14th  and  20th  of  February,  G.  S.  G.  and  Co. 
would  regard  the  claim  of  the  plaintiff  as  privileged  ;  and  K. 

11 


Octoter  I 


[*4 


4  CASES  IN  CHANCERY. 

1817.  offered,  in  their  name,  as  security,  to  make  over  to  the  plain 
v^^-x^^x  tiff  the  outward  cargo,  and  the  return  cargo,  or  proceeds  oi 
MESSONKIER  the  ship  Eastern  Star,  with  the  policies  of  insurance,  &c 
KAUMAH  ^ne  P^"1^^  m  n's  answer,  promised  to  accede  to  this  pro- 
posal, provided  G.  S.  G.  and  Co.  would  make  over  to  him 
the  ship,  as  well  as  the  cargo,  &c.,  to  secure  his  whole  claim, 
or  all  the  bills,  amounting  to  14,985  dollars,  with  interest, 
and  in  the  mean  time,  to  prevent  delay,  the  plaintiff  author 
ized  K.  to  take  up  the  bill  for  904  dollars,  and  to  draw  on 
the  plaintiff  for  the  amount,  at  sight,  which  was  done,  and 
the  sum  paid  by  the  plaintiff  accordingly.  That  afterwards, 
K.,  by  letter,  dated  the  6th  of  February,  1811,  after  he  had 
advanced  the  904  dollars  to  G.  S.  G.  and  Co.,  informed  the 
plaintiff,  that  he  (K.)  was  endorser  for  them,  and  that  the 
transfer  of  the  cargo  and  proceeds  was  preparing  for  the  joint 
benefit  of  K.  and  the  plaintiff,  and  that  G.  S.  G.  and  Co.,  de- 
clined including  the  ship  in  the  assignment ;  and  to  induce 
the  plaintiff  to  acquiesce  in  the  change  of  the  terms  of  secu- 
rity before  offered,  he  expressed  his  opinion  that  G.  S.  G. 
and  Co.  could  now  go  on  to  meet  their  engagements.  That 
on  7th  of  February,  1811,  G.  S.  G.  and  Co.  assigned  to  K. 
the  cargo  and  proceeds  of  the  ship  Eastern  Star,  with  the 
policies  of  insurance,  for  the  benefit  of  K.  and  the  plaintiff. 
That  on  the  9th  of  February,  the  plaintiff  forwarded  to  K. 
5,900  dollars,  to  take  up  the  bills,  payable  on  the  14th  and 
20th  of  February,  endorsed  by  the  plaintiff,  and  accepted  by 
G.  S.  G.  and,  Co.  That  when  those  sums  were  forwarded  to 
K.,  the  plaintiff  did  not  know  whether  the  assignments  were 
[  *  5  ]  made,  and  instructed  *K.  not  to  deliver  the  remittances,  ex- 

cept upon  the  transfer  of  the  ship,  cargo,  and  proceeds,  with 
the  policies,  &c.  That  when  he  found  the  transfer  was  for 
the  joint  benefit  of  K.  and  himself,  he  wrote  to  K.  on  the 
12th  of  February,  stating  his  objection,  and  that  he  must  be 
fully  secured,  and  on  those  conditions  only  did  he  consent  to 
part  with  his  funds.  That  K.,  by  his  answer,  dated  14th  of 
February,  assured  the  plaintiff  that  he  might  consider  himself 
completely  secured  by  the  transfers  made  by  G.  S.  G.  and  Co., 
and  that  the  claim  of  the  plaintiff  was  to  be  first  satisfied.  The 
plaintiff,  being  satisfied  with  this  assurance,  wrote  to  K.,  on 
the  19th  of  February,  to  that  effect ;  and  on  the  14th  of 
March,  1811,  at  the  request  of  G.  S.  G.  and  Co.,  and  of  K., 
he  remitted  to  K.  8,100  dollars,  to  take  up  the  remaining 
bills,  thereby  becoming  a  creditor  of  G.  S.  G.  and  Co.  to 
14,985  dollars.  That  the  cargo  of  the  Eastern  Star  arrived 
safely  at  Lisbon,  and  was  sold  for  above  30,000  dollars,  chiefly 
for  bills  on  the  British  government,  which  were  paid  ;  and  the 
proceeds  had  come,  or  might  have  come,  to  the  hands  of  the 
plaintiff,  and  that  the  ship  returned  to  New-York,  with  a  cargu 
12 


CASES  IN  CHANCERY. 

of  salt  and  cocoa,  which  K.  received,  and  sold  for  3,000  dol-        1817. 
Jars,  and  had  also  received,  or  might  have  received,  the  freight. 

The  bill  further  stated,  that  the  moneys  so  received  by  K. 
had  not  been  applied  to  the  benefit  of  the  plaintiff;  but  Gr.  KAUMAN. 
»S'.  G.  and  Co.,  and  K.,  (combining  with  the  other  defendants, 
to  deprive  the  plaintiff  of  the  benefit  of  the  transfer  of  the 
7th  of  February,)  had  executed,  on  the  28th  February,  1811, 
another  deed  of  assignment  to  the  defendant  K.,  and  to  Jones, 
of  the  cargo,  proceeds,  and  freight  of  the  Eastern  Star,  in 
trust,  to  pay  the  expenses  of  the  trust,  and  to  reimburse 
themselves ;  then  to  pay  the  plaintiff  what  he  had  advanced, 
or  should  advance,  to  G.  S.  G.  and  Co.,  under  the  agreement 
aforesaid;  and  to  pay  j£.,and  the  other  defendants, their  ad- 
vances and  responsibilities,  being  about  8,182  dollars  and  50 
cents,  and  to  pay  the  defendant  *  Jacobs  a  debt  of  12,800 
dollars ;  and  that  if  the  property  assigned  was  not  sufficient 
for  all  these  purposes,  then  to  distribute  the  same,  ratably, 
among  the  plaintiff  and  the  defendants,  according  to  the 
amount  of  their  respective  debts. 

The  bill  charged,  that  this  deed  of  trust,  as  far  as  regarded 
the  property  before  assigned  to  the  use  of  the  plaintiff,  and 
to  entitle  him  only  to  a  ratable  proportion  with  other  credit- 
ors, was  fraudulent  and  void ;  that  K.  was  a  trustee  for  the 
plaintiff  under  the  deed  of  the  7th  of  February,  and  had  no 
right  or  authority  to  give  it  up,  or  cancel  it,  or  to  do  any  act 
to  impair  the  rights  of  the  plaintiff,  who  was  entitled  to  be 
first  paid  out  of  the  property. 

The  bill  further  stated,  that  on  the  13th  of  February,  the 
plaintiff  sent  Lewis  PascauJfto  Neiv-York  with  all  the  cor- 
respondence between  the  plaintiff  and  G.  S.  G.  and  Co.,  and 
K.,  and  expressing  his  dissatisfaction  with  the  letter  of  the 
7th  of  February ;  and  with  the  intent  that  P.  should  procure 
transfers  of  the  ship,  cargo,  and  proceeds,  with  the  policies, 
&c.,  to  the  exclusive  use  and  benefit  of  the  plaintiff.  That, 
after  the  departure  of  P.,  the  plaintiff  received  the  letter  of 
K.  of  the  14th  of  February,  assuring  the  plaintiff,  that  he  was 
to  be  first  secured  and  paid,  by  that  deed ;  to  which  the 
plaintiff  replied,  on  the  19th  of  February,  expressing  his  sat- 
isfaction, and  requesting  that  the  deed  might  be  recorded ; 
and  wrote  letters  to  G.  S.  G.  and  Co.,  and  K.,  expressing  the 
object  of  sending  on  P. ;  so  that  all  further  authority  of  P. 
was  at  an  end  by  the  acquiescence  of  the  plaintiff  in  the  as- 
surance of  K.  as  to  the  deed  of  the  7th  of  February ;  and 
that  if,  as  the  defendants  pretended,  the  surrender  of  the 
deed  of  the  7th  of  February,  and  the  provisions  of  the  second 
deed  of  the  28th  of  February,  were  approved  of  by  P.,  as 
the  agent  of  the  plaintiff,  P.  had  no  authority  for  that  pur- 
pose, the  object  for  which  he  was  sent  no  longer  existing ; 

13 


CASES  IN  CHANCERY. 

1817.  and  if  he  did  give  such  sanction  to  the  second  deed,  it  was  pro 
^^-^~^~/  cured  by  imposition  *and  deceit,  as  the  defendants  must  have 
MESSONNIEK  known,  after  the  letter  of  the  plaintiff  of  the  19th  of  Febru- 
KAUMAN.  ar#>  expressing  himself  satisfied  with  the  deed  of  the  7th  of 
February,  that  P.  had  nothing  further  to  do  for  the  plaintiff 
or  authority  to  act  for  him.  That  K.,  by  a  letter  dated  the 
20th  of  February,  stated  to  the  plaintiff,  that  P.  and  K.  had 
agreed  to  a  new  transfer  of  the  property  to  K.  and  Jones,  in 
trust,  for  all  the  creditors ;  and  that  the  deed  of  the  7th  of 
February  was,  therefore,  null ;  to  which  the  plaintiff,  by  two 
letters  of  the  24th  of  February,  and  received  by  K.  the  26th 
of  February,  expressed  his  dissent,  and  adhered  to  the  deed 
of  the  7th  of  February,  with  the  explanations  of  K.  of  the 
14th  of  February.  That  the  cancelling  the  deed  of  the  7th 
of  February,  and  the  execution  of  the  deed  of  the  28th  of 
February,  was  after  K.  had  received  the  plaintiff's  two  letters 
of  the  24th  February,  and  without  his  consent,  and  he  has 
never  ratified  those  acts ;  and  that  if  any  thing  has  been  said 
or  done  by  the  plaintiff  to  that  effect,  it  has  been  procured 
by  imposition.  The  bill  then  charged  various  misrepresenta- 
tions by  K.  to  the  plaintiff,  as  to  the  debts,  &c.  of  G.  £.  G. 
and  Co.,  and  which  the  plaintiff  showed  to  be  the  result  of 
design  on  the  part  of  G.  &  G.  and  Co.,  and  K.,  to  mislead 
and  deceive  the  plaintiff,  and  to  induce  him  to  remit  the 
8,182  dollars  to  take  up  the  remaining  bills.  That  none  of 
the  property  assigned  by  the  deed  of  the  28th  of  February 
was  available,  except  the  bill  of  exchange  taken  for  the  out- 
ward cargo,  and  the  proceeds  of  the  homeward  cargo ;  and 
that  K.  received  out  of  the  proceeds,  &c.  above  30,000  dol- 
lars, which  he  had  applied  to  his  own  use ;  and  that  the  plaintiff 
had  not  received  any  thing  under  the  deed  of  the  7th  of  Febru- 
ary, nor  had  any  pro  rata  payment  been  made  to  him  by  Jones 
or  K.,  under  the  deed  of  the  28th  of  February ;  and  that  K. 
had  become  insolvent,  and  was  totally  unfit  to  be  a  trustee. 

The  bill  prayed,  that  an  account  might  be  taken  between 
[  *  8  ]  *the  parties  ;  that  the  deed  of  the  28th  of  February,  so  far  as 

it  interfered  with  the  deed  of  the  7th  of  February,  might  be 
declared  to  be  null ;  and  that  the  plaintiff  might  have  the  full 
benefit  of  the  deed  of  the  7th  of  February,  and  be  first  paid 
out  of  the  property  transferred  by  that  deed ;  that  any  pay- 
ments to  any  of  the  defendants,  under  color  of  the  deed  of 
the  28th  of  February,  so  far  as  the  same  were  inconsistent 
with  the  deed  of  the  7th  of  February,  and  the  letter  of  K.  of 
the  14th  of  February,  might  be  deemed  to  have  been  paid  in 
fraud  of  the  plaintiff;  and  that  the  moneys  might  be  paid 
over  to  the  plaintiff  by  such  of  the  defendants  as  had  received 
them  ;  and  that  K.,  on  the  coming  in  of  his  answer,  might  be 
ordered  to  bring  into  court  all  moneys  or  securities,  or  other 
14 


CASES  IN  CHANCERY. 

property  received  or  possessed  by  him  as  trustee  under  the 
deed  of  the  7th  of  February,  or  of  the  28th  February;  and 
for  general  relief,  &c.  MESSONNIEB 

V. 

The  answer  of  Kauman  (and  which,  by  consent,  was  re- 
ceived as  an  answer  for  the  other  defendants)  admitted  that 
G.  S.  G.  and  Co.  confirmed  the  negotiation  with  the  plaintiff, 
by  Seixas,  their  agent ;  that  the  bills  drawn  by  him  were  en- 
dorsed by  the  plaintiff,  and  accepted  by  G.  S.  G.  and  Co. ; 
and  that  the  ship  arrived  at  Lisbon,  with  a  cargo  purchased 
with  the  five  bills ;  that  the  plaintiff  paid  all  the  expenses, 
&c.,  which  were  partly  secured  by  the  bill  for  904  dollars ; 
and  that  the  plaintiff  did  all  this  business  for  the  usual  com- 
mission, without  any  lien  on  the  cargo,  or  collateral  security. 
That  in  the  latter  part  of  January,  1811,  G.  S.  G.  and  Co. 
stated  to  the  defendant,  that  they  were  embarrassed,  but 
solvent,  and  urged  him  to  write  to  the  plaintiff  for  his  aid  in 
taking  up  the  three  first  bills,  (amounting  to  6,800  dollars ;) 
and  that  he  should  remit  the  money  to  the  defendant ;  and 
that  they  would  look  on  his,  the  plaintiff's,  as  a  privileged 
debt ;  and  that  he  should  not  suffer ;  and  they  offered  to  the 
defendant  the  cargo  and  proceeds,  and  policies  and  freight, 
to  secure  the  plaintiff  *for  such  advances  and  payments.  [  *  9  ] 

That  the  plaintiff,  by  a  letter  of  the  25th  of  January,  informed 
the  defendant  of  his  endorsing  the  five  bills,  and  requested 
his  advice  as  to  the  safety  of  G.  S.  G.  and  Co.  That,  on  the 
3 1  st  of  January,  the  defendant,  by  letter,  applied  to  the 
plaintiff  for  G.  S.  G.  and  Co. ;  and  the  plaintiff,  by  his  answer 
of  the  2d  of  February,  said  he  should  take  up  two  of  the  bills, 
and  requested  the  defendant  to  pay  the  third,  of  904  dollars, 
immediately,  and  to  procure  a  cession  of  the  ship,  cargo,  and 
policies,  as  security  for  the  14,985  dollars,  with  interest. 
That  the  defendant  applied  to  G.  S.  G.  and  Co.,  who  said  the 
ship  was  not  at  their,  disposal,  and  that  they  considered  the 
security  to  be  given  to  extend  only  to  the  advances  to  be 
made  by  the  plaintiff,  and  offered  to  the  defendant,  who  was 
also  an  endorser,  to  assign  to  him  the  cargo  and  proceeds, 
&c.,  to  secure  the  plaintiff  the  reimbursement  of  the  remit- 
tances for  the  three  bills,  and  for  security  of  the  defendant ; 
and  said  that  they  expected  themselves  to  be  able  to  meet 
the  other  bills,  payable  in  March.  That  the  defendant,  and 
G.  S.  G.  and  Co.,  agreed  to  such  assignment.  That  on  the 
6th  of  February,  he  informed  the  plaintiff  of  the  agreement ; 
and  on  the  7th  of  February,  the  cession  was  made,  which  did 
not  cover  the  outward  cargo,  and  the  security  extended  only 
to  the  February  bills.  That  this  deed  of  cession  was  soon 
after  given  up  to  G.  S.  G.  and  Co.  That  the  plaintiff,  by  his 
letter  of  the  6th  of  February,  complained  of  them,  and  in- 

15 


9  CASES  IN  CHANCERY. 

1817.  sisted  on  a  cession  of  ship,  cargo,  and  proceeds,  and,  at  the 
v^^-^-^x  same  time,  promised  to  remit  for  the  February  bills.  The 
MESSONNIER  defendant  admitted  the  correspondence  between  him  and  the 
K  v-  plaintiff,  as  stated  in  the  bill.  That  he  received  from  the 
plaintiff,  on  the  llth  of  February,  5,900  dollars  to  pay  the 
February  bills,  with  orders  not  to  apply  the  money,  until  the 
plaintiff  was  fully  secured  to  the  amount  of  all  such  remit- 
tances, and  for  all  his  responsibilities  for  G.  S.  G.  and  Co. 
[  *  10  ]  He  admitted,  also,  the  explanation  of  the  deed  of  *cession  of 
the  7th  of  February,  made  in  his  letter  of  the  14th  of  Febru- 
ary, that  the  defendant  was  to  have  the  surplus  only,  after 
payment  of  the  demands  of  the  plaintiff.  That  the  defend- 
ant considered  that  G.  S.  G.  and  Co.  had  complied  with  their 
engagement,  and  that  the  security  extended  only  to  the  Feb- 
ruary bills,  and  he,  therefore,  paid  those  bills  with  the  money 
remitted  to  him  by  the  plaintiff.  That  Pascaulf  arrived  in 
New-York  the  17th  of  February,  as  the  authorized  agent  of 
the  plaintiff,  and  applied  for  a  renewed  security  to  the  plain- 
tiff alone,  and  to  cover  all  his  responsibilities,  which  wa%  re- 
fused; that  he  then  demanded  that  the  property  assigned 
should  be  applied  exclusively  to  the  benefit  of  the  plaintiff, 
which  was  refused ;  but  the  defendant  was  willing  to  agree  to 
it  to  the  extent  of  the  three  bills,  or  6,800  dollars,  but  G.  S.  G. 
and  Co.  refused,  and  proposed  to  make  an  adjustment  with  the 
plaintiff  and  the  other  creditors,  whose  debts  were  honorary, 
and  entitled  to  a  preference ;  and  in  consideration  that  the 
plaintiff  would  take  up  all  his  endorsed  bills,  and  the  former 
assignment  be  annulled,  that  they  would  assign  the  balance 
of  the  ship,  and  policies  of  insurance  on  another  ship,  and 
the  proceeds  of  the  cargo  aforesaid,  and  other  property,  for 
the  benefit  of  the  plaintiff  and  others.  That.  P.,  as  agent  of 
the  plaintiff,  agreed  to  this  proposal,  and  such  assignment 
was,  accordingly,  executed  on  the  28th  of  February,  with  a 
schedule  of  the  debts  secured,  &c.  That  the  defendant, 
thereupon,  with  the  assent  of  P.,  gave  up  to  G.  S.  G.  and 
Co.  the  first  assignment,  which  was  cancelled,  and  P.  agreed 
to  the  payment  of  the  first  three  bills,  and  that  the  plaintiff 
should  take  up  the  March  bills.  That  certain  changes  in  the 
property  to  be  assigned  were  made  with  the  assent  of  P. 
The  answer  set  out  the  assignment  of  the  28th  of  February, 
and  stated,  further,  that  G.  S.  G.  and  Co.  became  insolvent 
about  the  28th  of  February,  and  applied  for  the  benefit  of 
the  insolvent  act  in  May,  and  obtained  their  discharge  in 
[*11]  August,  *1811.  That  their  debts,  exclusive  of  those  provided 
for  by  the  assignment,  amounted  to  40,000  dollars  ;  and  their 
property,  not  included  in  the  assignment,  was  very  inconsid- 
erable. The  defendant  further  stated,  that  the  deed  of  the 
7th  of  February  was  cancelled  with  the  assent  of  P.,  undei 
16 


CASES  IN  CHANCERY.  11 

an  impression  that  the  assignment  of  the  28th  of  February  1817. 
would  be  more  beneficial.  That  the  plaintiff  would  not  have  \^r^~*+-s 
been  entitled  to  any  preference  to  the  defendant  under  the  MESSONSIER 
first  deed,  notwithstanding  any  stipulation  of  preference  by  KAUMAN 
the  defendant ;  nor  would  the  plaintiff  have  been  entitled  to 
payment  of  more  than  the  three  first  bills ;  and  that  the  as- 
signment of  the  7th  of  February  was  of  no  force,  as  the 
plaintiff  did  not  agree  to  it,  but  claimed  security  for  all  the 
five  bills,  and  that  he  should  be  first  paid,  which  was  repug- 
nant to  the  terms  of  the  deed.  That  P.  assumed  to  be  the 
general  authorized  agent  of  the  plaintiff,  and  the  defendant 
was  warranted  to  treat  with  him  as  such.  The  defendant 
denied  all  fraud  in  procuring  the  assent  of  P.,  or  that  the  as- 
signment of  the  28th  of  February  was  fraudulent.  He  ad- 
mitted that  the  plaintiff,  on  the  14th  of  March,  sent  him 
3,100  dollars  to  take  up  the  two  last  bills;  and  stated,  that 
P.  came  again  to  New- York,  in  May,  1811,  as  agent  of 
the  plaintiff,  and  was  informed  of,  and  approved  of  every 
thing  that  had  been  done,  and  claimed  only  a  ratable  pro- 
portion under  the  deed  of  the  28th  of  February.  That,  on 
Ihe  29th  of  May,  the  defendant  informed  the  plaintiff  of  a 
deficiency  in  the  fund;  and  that  the  deed  of  the  7th  of  Feb- 
utary  was  given  up  to  be  cancelled  before  the  plaintiff's  letters 
(  f  the  19th  and  24th  of  February  were  received,  expressing 
his  dissent  to  the  arrangement ;  and  that  the  plaintiff  did  not 
express  his  dissent  to  the  surrender  of  that  deed  until  after 
the  defendant  had  entered  on  the  execution  of  his  trust  under 
the  second  deed.  That  the  plaintiff  was  under  no  misappre- 
hension of  his  rights,  and  did  not  make  the  advance  of  the 
8,100  dollars  under  any  ignorance  of  facts,  or  of  his  rights. 

*The  defendant  admitted  that  he  had  received,  under  the  [  *  1 2 
assignment  of  the  2Sth  of  February,  3,132  dollars  and  48 
cents,  from  a  sale  of  part  of  the  outward  cargo,  14,977  dol- 
lars for  the  British  government  bills,  and  3,61 5  dollars  besides, 
and  had  paid  certain  sums  to  the  custom-house,  and  to  cer- 
tain other  creditors,  before  he  knew  that  the  plaintiff  had 
claimed  the  fund  exclusively,  and  which  sums,  so  paid,  he 
prayed  might  be  allowed,  and  a  commission  of  five  per  cent., 
to  him.  He  admitted  the  right  of  the  plaintiff  to  a  propor- 
tional dividend,  pro  rata,  with  the  other  creditors  named ; 
but  only  for  the  three  first  bills,  or  6,800  dollars. 

The  assignment  of  the  28th  of  February,  recited  that  the 
defendant  Kauman,  and  other  creditors,  who  were  severally 
named,  and  the  plaintiff,  had  made  advances  and  incurred 
responsibilities  for  G.  &  G.  and  Co.,  and  that  the  plaintiff  had 
agreed  to  take  up  the  bills  payable  in  March,  amounting  to 
8,182  dollars  and  50  cents.  That  G.  £  G.  and  Co.  had  as- 
signed the  ship  Eastern  Star,  and  the  policies  of  insurance, 

VOL.  Ill  3  17 


12  CASES  IN  CHANCERY. 

1317.       *°  B-  Jacobs,  and  also  the  policy  of  insurance  on  another 
v^-~xx-^x  ship,  to  secure  to  Jacobs  12,800  dollars;  and  that  the  surplus 
MESSONSIER    was  to  be  for  the  benefit  of  the  persons  named  in  this  assign- 
ment.    The  cargo  of  the  Eastern  Star,  and  proceeds,  and 

KAOMAN.  ,...,.  .      .  .  .  _     .    . 

policies  of  insurance,  and  the  other  property  specified  in  a 
schedule,  were  then  assigned  in  trust ;  1 .  To  pay  the  ex- 
penses of  the  trust ;  2.  To  pay  the  plaintiff  the  sums  he  had, 
or  might  advance  for  G.  S.  G.  and  Co.,  and  to  pay  K.  and 
the  other  creditors  named,  and  pay  Jacobs  any  deficiency  in 
the  security  for  his  debt.  3.  In  case  there  should  be  a  de- 
ficiency in  the  fund  so  as  not  to  pay  all  the  creditors  named, 
including  the  plaintiff,  in  full,  then  all  of  them,  including  the 
plaintiff,  were  to  be  paid  pro  rata,  according  to  the  amount. 

The  material  part  of  the  evidence  consisted  in  the  cor- 
respondence between  the  plaintiff  and  Kauman,  the  substance 
*  13  J  of  which  is  stated  in  the  opinion  of  the  Court.  *PascauIf 
was  examined  as  a  witness  for  the  plaintiff,  and  Seixas 
Nathan  (who  was  concerned  in  the  house  of  G.  S.  G.  and 
Co.)  for  the  defendants :  their  evidence,  in  several  particu- 
lars, was  contradictory. 

It  was  admitted  that  Jones,  though  a  trustee,  had  done  no 
act,  nor  received  any  funds,  under  the  assignment  of  the  28th 
of  February ;  and  that  he  never  saw  or  heard  of  the  assignment 
of  the  7th  of  February,  until  after  the  execution  of  the  second 
assignment.  That  the  creditors  of  G.  S.  G.  and  Co.,  and 
who  are  defendants,  insist  on  the  benefit  of  that  assignment. 

The  cause  came  on  to  be  heard  on  the  18th  of  June. 

T.  A.  Emmet,  for  the  plaintiff,  insisted  (1.)  on  the  assign- 
ment of  the  7th  of  February,  and  that  the  plaintiff  was  fully 
secured  thereby  for  the  whole  of  his  demand,  with  interest, 
in  preference  to  the  debt  of  Kauman. 

2.  That  Kauman,  having  delivered  up  that  deed  of  assign- 
ment to  be  cancelled,  without  the  concurrence  of  the  plain- 
tiff, and  contrary  to  his  direction,  the  cancelling  of  it  was  a 
breach  of  trust,  and,  as  regards  the  plaintiff,  was  fraudulent 
and  void ;  and  that  the  deed  ought  still  to  be  considered  as 
existing  and  in  force,  for  the  benefit  of  the  plaintiff,  and  to 
the  extent  of  his  demand. 

3.  That  it  was  not  competent  to  the  defendants,  or  either 
of  them,  to  destroy  the  plaintiff's  right  to  be  first  satisfied 
out  of  the  property  so  assigned  for  the  plaintiff's  benefit. 

4.  That  the  general  assignment  of  the  28th  of  February, 
1811,  so  far  as  it  purports  to  transfer  the  property  comprised 
in  the  first  assignment,  is  inoperative  and  void,  as  against  the 
plaintiff's  prior  security,  and  a  fraud  on  him. 

5.  That  the  assignment  of  the  28th  of  February  was  never 
assented  to  by  the  plaintiff;  and  any  apparent  acquiescence 
18 


CASES  IN  CHANCERY. 


in  it,  on  his  part,  was  the  result  of  misrepresentations  *on 
the  part  of  K.,  and  of  the  plaintiff's  ignorance  of  its  provis- 
ions, and  his  own  previous  rights. 

6.  That  under  the  general  assignment,  so  far  as  it  may  be 
deemed  valid  and  operative,  the  plaintiff  is  entitled  to  be 
paid  pro  rata  with  the  other  creditors  named,  on  the  whole 
amount  of  his  advances. 

7.  That  the  defendant  Kauman,  on  account  of  his  mis- 
conduct and  breach  of  trust,  was  responsible  to  the  plaintiff 
for  his  whole  debt. 

S.  Jones,  jun.,  for  the  defendants,  contended,  1.  That  the 
deed  of  the  7th  of  February,  1811,  was  never  perfected  and 
made  absolute  and  binding  on  the  parties  ;  but  if  it  was  bind- 
ing, the  plaintiff  was  entitled,  out  of  the  funds  assigned,  to 
no  more  than  a  reimbursement  for  his  advances  to  G.  S.  G. 
and  Co.,  to  enable  them  to  take  lip  the  bills  payable  in  Feb- 
ruary. 

2.  Th  it  the  deed  of  the  7th  of  February,  1811,  if  of  any 
force,  was  relinquished  and  annulled  by  the  mutual  consent 
of  the  parties. 

3.  That  the  deed  of  the  28th  of  February,  executed  by 
G.  S.  G.  and  Co.,  was  accepted  by  the  plaintiff  as  his  secu- 
rity for  his  advances. 

4.  That  F.  Pascaulf  was  the  agent  of  the  plaintiff,  and 
had  competent  authority  to  act  for  the  plaintiff,  in  the  prem- 
ises, and  that  his  acts  bind  the  plaintiff. 

5.  That  the  cancelling  of  the  deed  of  the  7th  of  February 
was  agreed  to  by  Pascaulf,  the  agent,  and  his  act  afterwards 
acquiesced  in  by  the  plaintiff. 

6.  That  the  deed  of  the  28th  of  February  was  agreed  to 
by  the  agent  of  the  plaintiff;  and  the  same  was  afterwards 
confirmed  and  adopted  by  the  plaintiff. 

7.  That  part  of  the  fund,   having  been  parted  with  by 
Kauman,  the  acting  assignee,  under  the  deed  of  the  23th  of 
February,  after  the  recognition  thereof  by  the  plaintiff,  and 
before  notice  of  any  objection  on  his  part,  it  is  now  *too  late 
to  call  it  in  question,  or  to  set  up  the  deed  of  the  7th  of 
February. 

8.  That  the  deed  of  the  7th  of  February  having  been  can- 
celled, and  the  property  and  funds  therein  mentioned  being 
assigned  to,  and  vested  in,  K.  and  J.,  by  the  deed  of  the  28th 
of  February,  for  the  benefit  of  the  plaintiff  and  other  credit- 
ors, the  deed  of  the  7th  of  February  cannot  now  be  set  up  to 
the  prejudice  of  the  creditors  provided  for  by  the  second  deed. 

THE  CHANCELLOR.  The  decision  of  this  case  depends 
upon  the  question,  whether  the  plaintiff  is  entitled  to  be  paid 

19 


1817. 

^~NX~^ 

MESSONNIER 

v. 
KAUMJH 


[*15] 


October  I. 


15  CASES  IN  CHANCERY. 

1817  under  the  assignment  of  the  7th  of  February,  in  exclusion  ol 
V«**-N/-»^X  the  other  creditors ;  or  whether,  that  deed  being  duly  can- 
MESSONNIER  celled,  he  can  only  come  in  for  his  pro  rata  dividend,  under 
K  *UVMAN.  the  trust  of  the  28lh  of  February,  1811. 

The  assignment  of  the  7th  of  February  was  from  G.  S. 
G.  and  Co.  to  Kauman,  for  the  benefit  of  l{.  and  the  plaintiff, 
of  the  proceeds  of  the  cargo  of  the  ship  Eastern  Star,  on  the 
outward  voyage,  and  of  the  policies  on  the  cargo  and  freight. 
Tt  was  an  assignment  under  hand  and  seal. 

This  assignment  does  not  specify  the  particular  debts  for 
which  the  assignment  was  made.  It  is  general,  and  would, 
of  course,  entitle  the  assignees  to  hold  the  property  as  a 
security  for  all  their  then  existing  demands  and  responsibili- 
ties. It  would  entitle  the  plaintiff  to  hold  the  property  in 
pledge  for  his  reimbursement  and  indemnity,  in  supplying 
the  cargo  of  the  ship,  and  endorsing  the  five  bills  of  exchange 
which  had  been  drawn  on  G.  S.  G.  and  Co.,  and  accepted  by 
them.  The  plaintiff  had  an  equitable  pretension,  superior  to 
that  of  any  other  creditor,  (for  none  had  then  acquired  any 
actual  legal  lien,)  to  be  indemnified  out  of  the  proceeds  of 
the  very  cargo  which  he  himself  had  furnished.  If  we  attend 
to  the  history  of  the  facts  which  led  to  this  assignment,  we 
shall  find  that  the  plaintiff  claimed  it,  and  expected  it  to  be 
[  *  16]  made  for  his  *benefit  exclusively,  and  to  the  extent  of  his 
whole  demand.  The  proposition  came  from  the  debtors 
themselves. 

A  letter  from  K.,  of  the  31st  of  January,  1814,  mentions, 
that  G.  S.  G.  and  Co.  had  applied  to  him  to  procure  from 
the  plaintiff  aid  to  enable  them  to  take  up  the  three  February 
bills  ;  and  what  did  they  promise  as  a  consideration  for  this 
aid  ?  They  said  that  they  would  then  look  upon  the  plain- 
tiff's claim  as  a  privileged  one,  and  that,  in  no  case  whatever, 
would  they  suffer  him  to  be  injured  by  them;  and  they  of- 
fered, as  a  security  for  his  advances  as  above  stated,  to  make 
over  to  him  the  proceeds  of  the  outward  cargo,  with  the 
policies. 

The  offer  in  this  letter  is  a  little  equivocal,  and  if  not 
designed  as  security  for  his  whole  demand,  would  be  apt  to 
mislead  the  plaintiff,  especially  considering  him  as  a  foreigner 
not  well  versed  in  the  import  of  terms  in  our  language.  It 
promises  him,  in  the  first  place,  that  his  claim  shall  be  privi- 
leged. This  would  lead  any  person  of  ordinary  understanding 
o  suppose  they  meant  his  whole  debt,  and  especially  when 
they  added  that  he  should  never  suffer  by  them.  But,  after- 
wards, they  offer  the  proceeds  as  security  for  his  said  ad- 
vances, which,  perhaps,  strictly  considered,  would  apply  only 
to  the  special  aid  then  called  for.  The  plaintiff,  however, 
construed  the  offer  in  a  larger  sense.  By  his  answer  of  the 
20 


CASES  IN  CHANCERY.  10 

2d  of  February,  he  accedes  to  the  proposal,  but  evidently  1817. 
understands  the  proposal  to  be,  that  the  ship,  as  well  as  -^^^^^^ 
cargo,  was  to  be  assigned,  and  that  the  assignment  was  to  MESSONSIER 
cover  his  whole  demand  of  14,985  dollars,  with  interest.  KAUMAS. 
He  clearly  mistook  the  terms  as  to  the  ship,  but  he  had  color 
for  the  latter  construction.  Kauman,  by  his  letter  of  the  6th 
of  February,  appears  to  have  communicated  the  answer  of 
the  plaintiff  to  G.  S.  G.  and  Co.,  for  he  says,  that  they  cannot 
assign  the  ship,  (and  gives  the  reason,)  but  that  they  were 
about  executing,  in  due  form,  the  transfer  of  the  cargo,  poli- 
cies, and  proceeds.  Nothing  is  said  as  to  what  extent  of 
demand  *the  assignment  is  to  cover.  It  is  only  added,  that  [*  17  ] 
it  was  to  be  for  the  joint  benefit  of  the  plaintiff  and  K.  This 
silence  of  G.  S.  G.  and  Co.,  on  the  6th  of  February,  after  they 
had  been  duly  apprized  of  the  plaintiff's  understanding  of 
their  proposal,  and  after  they  had  corrected  it,  as  to  the  ship, 
and  only  as  to  the  ship,  is  decisive  of  their  assent  to  his  de- 
mand, that  the  assignment  should  cover  his  whole  responsi- 
bility. I  consider  K.,  in  this  transaction,  to  have  been  as 
much  the  agent  of  G.  S.  G.  and  Co.  as  of  the  plaintiff.  He 
was  their  mutual  agent ;  and  when  the  assignment  was  made, 
on  the  7th  of  February,  and  in  general  terms,  without  desig- 
nating any  particular  part  of  the  plaintiff's  claim  to  which  it 
was  to  be  confined,  the  construction  is  no  less  just  than 
legal,  that  it  covered  his  whole  responsibility,  to  the  amount 
of  the  14,985  dollars.  Here,  then,  the  plaintiff  acquired  a 
right  vested  and  absolute,  by  the  assignment  of  the  7th  of 
February,  and  nothing  but  some  subsequent  act  of  his,  done 
freely,  and  with  an  understanding  of  all  his  rights,  could 
deprive  him  of  that  legal  security. 

But  the  plaintiff,  when  he  came  to  be  duly  informed  of  the 
contents  of  the  assignment,  was  dissatisfied  that  K.  had 
taken  it,  not  for  the  plaintiff  alone,  but  for  their  joint  benefit, 
and  this  led  to  some  correspondence  between  them.  This 
difficulty  was,  however,  soon  removed ;  for  Kauman,  in  his 
letter  to  the  plaintiff,  of  the  14th  of  February,  says,  that  the 
plaintiff  was  perfectly  safe ;  for  though  the  transfer  was  in 
their  joint  names,  yet  it  was  intended  only  to  secure  the  sur- 
plus to  K.,  after  the  plaintiff  was  secured  tJie  whole  amount 
of  his  claim,. 

We  are  next  to  see  whether  the  plaintiff  subsequently 
deprived  himself  of  the  benefit  of  this  assignment.  As  it 
then  stood,  it  was  for  the  security  of  his  whole  demand,  to 
be  first  and  exclusively  paid.  This  was  precisely  his  declared 
object  from  the  beginning ;  and  it  is  scarcely  possible  to  be- 
lieve, that  he  would  afterwards,  intentionally  and  ^freely,  [  *  18  / 
part  with  this  great  and  just  advantage,  for  a  pro  rata  divi- 
dend, under  the  deed  of  the  28th  of  February. 

21 


18  CASES  IN  CHANCERY. 

1817.  The  letters  from  the  plaintiff  of  the  6th,  9th,  12th,  13th 

*^**~^s~^s  and  14th  of  February,  all  speak  the  same  language.  They 
MESSONNIER  all  show  his  clear  and  decided  intention  to  have  the  assign- 
KAUMAN  nient  as  a  cover  for  his  whole  demand,  and  to  make  that 
assignment  a  condition  of  his  furnishing  funds  to  take  up  the 
February  bills.  His  object  in  sending  on  his  friend  Pas- 
caulfwas  for  explanation,  while  he  was  under  the  impression 
that  the  assignment  was  not  for  his  exclusive  benefit.  This 
appears  from  his  letter  to  Kauman  of  the  19th  of  February, 
in  which  he  says,  that  the  explanation  given  by  K.  that  he 
was  only  to  come  in  for  the  surplus,  after  the  demands  of 
the  plaintiff  were  satisfied,  superseded  the  necessity  of  send- 
ing on  Pascaulf.  It  is  worthy  of  notice,  too,  that,  in  this 
last  latter,  he  relies  upon  the  assignment  of  the  7th,  and 
wishes  to  have  it  recorded,  so  as  to  give  it  due  validity. 

The  arrival  of  P.  at  Neiv-'York  opens  a  new  scene  in  the 
history  of  this  transaction,  in  which  the  deed  of  the  7th  of 
February  is,  some  how  or  other,  and  certainly  not  with  the 
consent  or  knowledge  of  the  plaintiff  at  the  time,  put  out  of 
existence,  and  the  plaintiff  left  to  look  for  his  indemnity,  as 
a  pro  rata  creditor  only,  under  the  deed  of  trust  of  the  28th 
of  February. 

The  plaintiff,  by  letter  of  the  14th  of  February,  informs 
G.  S.  G.  and  Co.,  that  the  assignment  of  the  7th  of  February 
was  not  what  was  agreed- to,  as  it  ought  to  have  been  in  his 
name  only,  for  the  whole  of  his  demand,  and  that  he  sent 
on  his  friend  P.,  in  order  to  settle  the  business  in  his  name,  to 
their  mutual  satisfaction,  and  he  trusted  that  G.  S.  G.  and  Co. 
would  give  him  the  satisfaction  he  had  a  right  to  expect. 
This  letter,  it  is  admitted,  contains  all  the  powers  of  P.,  who 
was  a  Frenchman  of  advanced  age,  and  so  little  versed  in  the 
English  language,  that  an  interpreter  was  requisite  to  explain 
[*  19]  part  of  the  conversations.  *This  is  proved  by  Nathan,  a 
witness  for  the  defendant. 

Tt  is  pretty  evident  that  the  mission  of  P.  was  to  obtain  such 
security  as  the  plaintiff  had  looked  for  under  the  deed  of  the 
7th  of  February,  which  security  he  had  discovered,  by  the 
explanatory  letter  of  Kauman,  of  the  14th  of  February,  (the 
same  day  on  which  the  plaintiff  had  sent  on  P.,)  did  really 
exist  under  that  assignment.  If  P.  was  to  settle  the  business 
to  their  mutual  satisfaction,  the  settlement  was  to  depend 
upon  their  mutual  ratification.  That  letter  never  authorized 
P.  to  give  up  a  vested  right  under  the  deed  of  the  7th  of 
February,  until  some  new  security  was  actually  given,  equiv- 
alent in  its  effects,  or.  at  least,  satisfactory  to  both  parties ; 
and,  certainly,  when  the  letter  of  the  1 9th  of  February  to  K. 
was  received,  (which  must  have  been,  according  to  the  course 
of  the  mail,  on  the  20th  of  February,}  it  superseded  alJ 
22 


CASES  IN  CHANCERY.  19 


further  negotiation  with  Pascaulf.  The  plaintiff  had  then 
ratified  the  assignment  of  the  7th  of  February,  and  I  consider 
every  communical ion  to_fiT.  as  equal  to  a  communication  with  G.  MESSOMXIEK 
&  G.  and  Co.,  for  he  was  as  much  their  agent  as  the  plaintiff's,  K\UM  \K 
in  the  whole  negotiation.  At  what  precise  time  the  assign- 
ment of  the  7th  of  February  was  given  up  by  K.  to  G.  S. 
G.  and  Co.,  to  be  cancelled,  does  not  distinctly  appear.  If  it 
was  done  before  the  new  assignment  was  executed  on  the 
28th  of  February,  it  was  done  with  too  much  precipitation. 
No  prudent  man  would  part  with  one  security  until  the 
substitute  was  prepared  and  executed.  The  defendant's 
witness,  Seixas  Nathan,  says,  that  the  new  assignment  was 
executed  when  it  bore  date,  which  is  on  the  28th  of  February ; 
and  this  was  probably  after  P.  had  left  New-York  >  on  his 
return  to  the  plaintiff.  Yet  it  is  singular,  if  not  astonishing, 
to  learn  how  G.  S.  G.  and  Co.,  and  K.,  had  arranged  matters 
as  early  as  the  20th  of  February.  By  a  letter  to  the  plaintiff 
of  that  date,  Kauman  says  that  G.  S.  G.  and  Co.  wish  to  pay 
all  their  creditors  alike,  and  refuse  any  new  transfer  to  the 
plaintiff  alone,  and  that  he  and  P.  *had  already  called  on  [  *  20  ] 
Mr.  Jones  to  consult  and  agree  about  a  new  assignment  to 
pay  the  plaintiff,  with  a  number  of  other  creditors,  ratably. 
This  letter  was  eight  days  before  any  new  assignment  was 
executed  ;  yet  Kauman  says,  the  first  transfer,  by  this  arrange- 
ment, was  rendered,  null  and  void.  This  letter  was  also  written 
six  days  after  K.  had  agreed  that  the  deed  of  the  7th  of 
February  was  for  the  prior  and  exclusive  benefit  of  the 
f  laintiff,  and  that  he  was  only  to  take  the  surplus ;  and  it 
was  written  long  after  G.  S.  G.  and  Co.  had  declared  that  the 
plaintiff's  claim  should  be  privileged,  if  he  would  furnish 
remittances  to  take  up  the  February  bills.  It  appears  to  me, 
that  G.  S.  G.  and  Co.  had,  by  this  time,  discovered  that  the 
assignment  of  the  7th  of  February  was  inconvenient  to  them, 

~  ,7  i 

though  it  had  answered  one  of  their  objects,  viz.  the  receipt 
of  funds  of  the  plaintiff  to  take  up  their  February  bills.  It 
appears  to  me,  also,  that  Kauman  had  become  dissatisfied 
with  his  explanation  of  the  14th,  that  the  plaintiff  was  to  be 
first  paid,  and  was  the  willing  instrument  of  G.  S.  G.  and  Co. 
in  destroying  that  assignment.  Why  declare  so  prematurely, 
that  the  first  transfer  had  become  null  and  void  ?  and  why 
not  arrest  all  this  new  arrangement,  after  the  receipt  of  the 
plaintiff's  letter  of  the  19th  of  February,  saying  that  he  was 
satisfied  with  the  transfer  ?  The  answer  of  Kauman,  which 
is  also  the  answer  of  G.  S.  G.  and  Co.,  says,  the  deed  of  the 
7th  of  February  was  destroyed  before  the  receipt  of  the  letter 
of  the  plaintiff,  of  the  19th  of  February.  Such  a  premature 
destruction  of  it  is,  in  my  judgment,  a  very  strong  mark  of 
fraudulent  design. 

23 


20  CASES  IN  CHANCERY 

1817.  P-  says, that  he  was  informed,  on  his  arrival  in  New-Yorkt 

^*~^~+^/  by  K.,  that  the  deed  of  the  7th  of  February  was  destroyed. 

MESSONNIER    He  denies  that  he  had  any  authority  to  cancel  that  deed,  or 

that  he  ever  consented  to  it,  or  ever  saw  it,  or  that  he  ever 

IVAUMAN.  <•      i  •  TT 

saw  or  knew  the  contents  of  the  second  assignment.  He 
never  had  or  assumed  any  authority,  and  was  only  sent,  as  a 
friend  of  the  plaintiff,  to  receive  payment,  or  to  take  security 
[  *  21  J  for  the  plaintiff  singly.  Seixas  Nathan  (who  was  *at  that 
time  one  of  the  house  of  G.  S.  G.  and  Co.)  contradicts  the 
testimony  of  P.  in  several  particulars,  and  says  P.  did  agree 
to  the  deed  of  the  2Sth,  and  to  the  surrender  of  the  first  deed, 
and  did  act  as  the  authorized  agent  of  the  plaintiff. 

There  are  several  circumstances  in  the  testimony  of 
Nathan  which  affect  its  credit.  He  admits  that  P.  left 
New-  York  for  Baltimore  the  latter  end  of  February,  and, 
therefore,  he  probably  left  it  before  the  execution  of  the 
second  deed.  He  says  that  Mr.  Jones  asked  P.  if  he  was 
willing  that  all  that  had  been  done  should  be  considered  as 
void;  and  he  said  he  was,  and  that  the  deed  of  the  7th  was 
afterwards  destroyed ;  and  yet  Mr.  Jones  confesses  that  he 
never  saw  or  heard  of  the  deed  of  the  7th  of  February,  until 
after  the  execution  of  the  deed  of  the  28th  of  February. 

I  cannot  resist  the  impression,  that  the  deed  of  the  7th  of 
February  was  surreptitiously  and  fraudulently  cancelled,  by 
arrangement  between  G.  S.  G.  and  Co.  and  Kauman,  and  that 
Pascaulfwas  not  duly  authorized,  and  never  consented  to 
destroy  that  deed,  and  that  the  plaintiff  never  gave  his  free 
and  voluntary  assent  to  it. 

The  plaintiff,  by  his  two  letters  of  the  24th  of  February, 
insists  on  adhering  to  the  deed  of  the  7th,  and  expressly 
dissents  from  the  new  arrangement,  and  expresses  himself 
with  the  true  feeling  and  just  indignation  of  a  man  on  whom 
the  grossest  imposition  had  been  practised. 

His  acquiescence,  afterwards,  in  the  destruction  of  the  first, 
and  in  the  substitution  of  the  second  assignment,  was  the 
acquiescence  of  despair,  and  a  submission  to  destiny.  If 
the  thing  be  not  practicable,  says  he,  (that  is,  to  be  secured 
according  to  his  original  expectation  and  demand,)  1  must  at 
last  submit.  In  one  of  these  letters,  he  says,  he  will  not 
provide  for  the  March  bills,  without  the  security  of  the  7th 
of  February;  and  yet,  in  a  letter  of  the  1st  of  March,  K. 
informs  him  that  G.  S.  G.  and  Co.  hinted  that  unless  he  would 
[  *  22  J  provide  for  these  March  bills,  he  would  not  *be  considered  a 
privileged  creditor.  This  was  an  unjust  threat  and  cruel 
sarcasm  to  an  injured  creditor,  whom  they  had  made  the 
victim  of  their  intrigues,  and  whom  they  held  in  a  kind  of 
dure'ss.  To  talk  of  the  plaintiff's  free  and  voluntary  ratifi- 
cation of  the  second  assignment,  and  surrender  of  the  first, 
24 


CASES  IN  CHANCERY.  22 

is  idle  and  absurd.     Every  thing  that  he  said  afterwards  was        1817. 
extorted  from  him  by  necessity.     His  letter  of  the  26th  of  \^*^s~*^s 
March  speaks  of  his  ratable  share  of  the  proceeds ;  but  in    MESSONNIEK 
his  letter  of  the  13th  of  April,  he  requests  payment  out  of      KAUMAN 
the  proceeds,  if  not  of  the  whole,  at  least  of  part  of  his 
demand ;  and  in  his  letter  of  the  same  date,  to  G.  *S".  G.  and 
Co.,  he  claims  from  them  the  payment  of  his  advances  out  of 
the  proceeds.     These  letters  cannot  conclude  him  from  re- 
sorting to  his  title  under  the  deed  of  the  7th  of  February. 
They  were  written  under  mistaken  impressions,  that  his  rights 
had  been  sacrificed  and  lost,  beyond  redemption.     His  dis 
satisfaction  and  constant  uneasiness,  under  the  pressure  of  the 
impositions  practised  upon  him,  are  very  apparent  from  those 
very  letters ;  for,  in  that  of  the  13th  of  April  to  Jones  and 
Kauman,  he  extends  his  demand  to  the  whole  of  the  pro- 
ceeds, and  so  he  does  in  his  letter,  of  the   same  date,  to 
G.  £  G.  and  Co. 

My  opinion,  accordingly,  is,  that  the  plaintiff  is  entitled  to 
the  full  benefit  of  the  assignment  of  the  7th  of  February, 
1311,  and  in  preference  to  the  defendant  Kauman;  and  that 
he  is  to  be  first  and  exclusively  paid,  out  of  the  property 
therein  assigned,  to  the  extent  of  his  whole  demand,  and  that 
the  deed  of  trust  of  the  28th  of  February,  1811,  so  far  as  it 
is  inconsistent  with  the  provisions  in  the  deed  of  the  7th,  or 
with  the  right  of  the  plaintiff  to  be  paid  as  aforesaid,  is,  and 
ought  to  be,  null  and  void.  That  the  plaintiff  may  take  such 
an  order  of  reference  as  the  nature  of  his  case  may  seem  to 
require.  That  the  defendant  Kauman  account  for  the  pro- 
ceeds, under  that  assignment,  with  costs  of  suit,  and  that  the 
bill,  as  to  the  defendants  Gompert  *£  Gomperts,  Israel  B.  (  *  23  ] 
Jacobs,  and  Seixas  Nathan,  be  dismissed  without  costs;  and 
that  the  bill,  as  to  the  other  defendants,  viz.  Samuel  Jones, 
/MM.,  and  the  defendants  who  are  creditors,  be  dismissed  with 
costs,  to  be  paid  out  of  the  surplus  funds,  (if  any,)  after  the 
tJ.)mand  of  the  plaintiff  has  been  previously  paid. 

Decree  accordingly. 
VOL.  III.  4  25 


CASES  IX'  CHANCERY. 


1817. 

^-•v— «>* 

LAWRENCE 

v. 
DALE. 


October  I, 


[*24] 


LAWRENCE  and  others  against  DALE  and  others. 

[Affirmed,  17  Johns.  437.] 

Where  two  persons  are  joint  proprietors  of  certain  patent  rights  and 
privileges,  as  for  navigating  vessels  by  steitm,  one  of  them,  on  the 
mere  ground  of  such  joint  interest  or  concern,  is  not  responsible  for 
any  special  contract,  or  undertaking,  entered  into  by  the  other  with 
any  assignee  of  such  right  or  privilege,  not  connected  with  the  enjoy- 
ment and  exercise  of  their  common  privilege  under  the  patent. 

Where  one  party  intends  to  abandon  or  rescind  a  contract,  on  the  ground 
of  a  violation  of  it  by  the  other,,he  must  do  so,  promptly  and  decidedly 
on  the  first  information  of  such  breach.  If  he  negotiates  with  the 
party,  after  knowledge  of  the  breach,  and  permits  him  to  proceed  in 
the  work,  it  is  a  waiver  of  his  right  to  rescind  the  contract. 

The  defendants  conti  acted  with  the  plaintiffs  to  be  responsible  for  the 
perfect  construction  and  performance  of  certain  steam-boats,  to  be 
built  on  the  river  Ohio,  so  that  they  should  carry  one  hundred  tons 
burden,  and  run  four  miles  an  hour  in  still  water :  Held,  that  the 
plaintiffs  could  not,  after  the  boats  were  built,  rescind  the  contracn  •.».. 
their  part,  and  recover  back  the  money  advanced  by  them  to  the  uc- 
fenclants,  on  the  alleged  ground  that  the  boats  drew  too  much  water  to 
navigate  the  river,  without  having  first  put  the  fitness  of  the  boats  to 
navigate  the  river,  in  the  manner  agreed  on  by  the  parties,  to  the  test 
of  experiment. 

THE  bill,  which  was  filed  on  the  28th  of  November,  1815, 
stated,  that  the  late  Robert  Fulton,  deceased,  (whose  ex- 
ecutors, Harriet  Dale  and  William  Cutting,  were  made 
defendants,)  in  his  lifetime,  about  the  llth  of  February, 
1809,  and  the  9th  of  February,  1811,  obtained  certain 
patents,  for  applying  the  power  of  steam  to  the  purposes  of 
Navigation,  in  which  patents  the  late  Robert  R.  Livingston 
was  equally  interested,  by  virtue  of  an  agreement,  entered 
into  between  them,  in  1802,  (set  forth  in  the  bill,)  and,  also, 
by  one  or  more  assignments  of  the  said  patent  rights,  from 
Fulton  to  Livingston,  and  supposed  to  be  in  the  power  of  the 
defendants,  Edward  P.  Livingston  and  Robert  L.  Livinsgton ; 
and  that  in  consequence  thereof,  and  by  virtue  of  certain 
arrangements  between  them,  they  became  copartners,  and 
equally  concerned,  in  the  construction  and  employment  of 
steam-boats,  and  in  all  undertakings  and  establishments 
therewith  connected;  and  that  they  erected,  at  their  joint 
expense,  and  for  their  joint  benefit,  workshops,  &c.  in  the 
state  of  New-Jersey  and  elsewhere,  for  building  and  repairing 
steam-boats :  and,  particularly,  did  erect  such  workshops  and 
buildings,  on  their  joint  account,  at  or  near  Pittsburgh,  in  the 
state  of  Pennsylvania,  for  the  purpose  of  building  steam- 
boats to  navigate  the  Ohio  and  Mississippi,  and  other  waters 
communicating  with  those  rivers.  That  the  said  copartners. 
in  the  beginning  of  the  year  1813,  jointly  published  and 
26 


CASES  IN  CHANCERY.  24 

circulated  proposals,  throughout  the  United  States,  inviting  1817. 
persons  to  form  companies  and  establish  steam-boats  on  the  ^*^^*^ 
navigable  waters  of  the  United  States,  under  the  patents  of  LA\\K>;NH: 
the  said  copartners,  &c.  And  one  or  more  companies  DALE. 
having  been  formed,  for  the  purpose  of  navigating  the  Ohio 
and  Mississippi,  below  the  falls,  the  said  copartners,  at  their 
work-shops,  at  or  near  Pittsburgh,  actually  built,  by  their  own 
workmen  and  engineers,  and  under  the  superintendence  of 
their  agents,  the  steam-boats  required  for  -the  use  of  the 
companies  so  formed,  who,  however,  furnished  the  requisite 
funds.  That  Robert  R.  Livingston  died  on  the  23d  of 
February,  1813,  and  all  his  rights  and  privileges  in  the  said 
copartnership  became  vested  in  his  widow,  and  his  two  sons- 
in-law,  as  the  husbands  of  his  surviving  children,  and  subse- 
quently, after  the  death  of  their  mother,  in  October,  1813,  in 
the  said  Edward  P.  Livingston  and  Robert  L.  Livingston, 
defendants,  who  thereafter  possessed  and  enjoyed  all  the  [  *  25 
right,  interest,  and  property,  of  the  said  R.  R.  L.  deceased, 
in  the  said  copartnership.  That  the  principal,  if  not  ex- 
clusive, management  of  the  concerns  of  the  said  copart- 
nership, after  the  death  of  the  said  R.  R.  L.,  devolved  on  the 
said  Robert  Fulton,  who  became  the  active  partner,  and 
conducted  the  same  for  the  joint  benefit,  and  upon  the  joint 
responsibility,  of  himself  and  of  the  said  representatives  of 
the  said  R.  R.  L.  That  for  their  joint  benefit,  and  in  order 
to  connect  with  the  line  of  steam-boats  running  from  Louis- 
ville to  New- Orleans,  another  line  of  steam-boats,  to  run 
above  the  falls  of  the  Ohio,  from  Pittsburgh  to  Louisville,  the 
said  Fulton,  to  facilitate  the  formation  of  a  company  for  that 
purpose,  employed  Benjamin  H.  Latrobe  as  an  agent,  who 
issued  the  proposals  set  forth  in  the  bills,  with  the  consent 
and  approbation  of  F.  and  the  defendants  E.  P.  L.  and 
R.  L.  L.,  who  were,  then  and  afterwards,  equally  concerned 
with  F.  in  the  property  and  concerns  of  the  said  copart- 
nership, and  received  a  proportion  of  the  profits  thereof; 
which  proposals  were,  soon  after,  accepted  and  agreed  to  by 
some  of  the  plaintiffs,  and  others,  who  formed  themselves 
into  a  company  to  carry  the  same  into  effect,  and  sub- 
scribed the  same,  with  the  sums  paid  by  them  respectively, 
upon  a  printed  copy  of  the  said  proposals.  That  the 
said  E.  P.  L.  and  R.  L.  L.  knew  of  the  said  proposals,  and 
must  have  consented  to,  and  approved  of  them,  as  they  never 
gave  any  notice  whatever  of  their  disagreement  to  them,  or 
of  their  unwillingness  to  be  bound  by  them.  That  of  the 
one  hundred  shares  specified  in  the  first  articles,  eighty-seven 
were  subscribed  in  New-York,  by  certain  of  the  plaintiffs, 
whose  names  were  set  forth  in  the  bill;  and  the  thirteen 
rsmaining  shares  were  reserved  by  Fulton,  with  the  intention 

27 


26*  CASES  IN  CHANCERY. 


1817.       tna*  they  should  be  subscribed   for  by  persons   resident  m 
s_-^—x/~>^x  Pittsburgh  and  its   vicinity,  and  that  any  facts  in  regard  to 

LAWRENCK  them  are  unknown  *to  the  plaintiffs.  That  the  plaintiffs 
DALE.  Pa^  *°  Fulton,  as  the  acting  partner,  not  only  the  full  amount 
of  their  respective  subscriptions,  but  a  large  sum  of  money 
over  and  above  the  same,  to  which  they  were  induced,  after 
considerable  progress  had  been  made  in  building  the  steam- 
boat, for  the  purpose  of  adding  to  the  original  plan  a.  freight- 
boat,  to  be  towed  by  the  steam-boat,  upon  the  plan  and  at  the 
solicitation  of  F.  That  in  consequence  of  this  alteration  of 
the  original  plan,  a  more  formal  agreement  was  entered  into 
between  F.  and  E.  P.  L.  and  R.  L.  L.,  of  the  first  part, 
and  the  plaintiffs,  of  the  second  part,  dated  the  7th  of 
January,  1815,  which  was  executed  only  by  Fulton,  of  the 
one  part,  and  several  of  the  plaintiffs,  who  represented  56 
shares  ;  but  which,  as  the  bill  stated,  was  to  be  executed,  as 
soon  as  convenient,  by  E.  P.  L.  and  R.  L.  L.,  and  the  rest 
of  the  plaintiffs.  That  the  plaintiffs,  in  proportion  to  their 
respective  interests,  advanced  to  F.,  as  acting  partner,  in 
divers  sums,  and  at  various  times,  which  were  particularly  set 
forth  in  the  bill,  to  the  amount  of  33,660  dollars,  over  and 
above  the  sums  subscribed  by  them,  and  had  also  expended 
100  dollars  in  obtaining  an  act  of  the  legislature  of  Pennsyl- 
vania, in  favor  of  the  plaintiffs  and  F.  and  E.  P.  L.  and  R. 
L.  L.  That  in  February,  1815,  F.  died,  leaving  his  wife 
and  William.  Cutting,  his  brother-in-law,  two  of  the  defend- 
ants, trustees  of  his  estate,  and  guardians  of  his  children, 
under  his  will,  made  on  the  13th  of  December,  1814,  and 
that  the  widow  had  since  intermarried  with  the  defendant 
Dale.  That  the  said  steam-boat  had  never  been  completed, 
and  that  it  would  require  about  15,000  dollars  for  that  pur- 
pose. That  she  has  been  built  in  an  unskilful  and  unwork- 
manlike manner,  and  is,  moreover,  from  her  great  draught  of 
water,  wholly  unfit  for  the  navigation  contemplated  in  the 
proposals,  and  would  be,  therefore,  if  completed,  of  no  use 
to  the  plaintiffs.  That  in  consequence  thereof,  and  of  the 
lapse  of  a  great  portion  of  the  exclusive  privilege  of  the 

*  27  ]  patentees,  by  which  their  *hope  of  remuneration  is  greatly 
diminished,  the  plaintiffs  are  unwilling  to  make  any  further 
advances  under  the  agreement  ;  and  they  insisted  that  they 
ought  not  to  be  called  on  to  make  further  advances,  but 
have  a  right,  in  consequence  of  the  defaults  of  Fulton  and 
L.  in  their  lifetime,  and  of  the  defendants  since  their  deaths, 
to  apply  for  a  dissolution  of  the  contract,  and  for  a  repay- 
ment of  their  money.  That  the  plaintiffs  had,  in  consequence 
of  those  defaults,  made  a  demand  in  writing  of  the  defend- 
ants, of  the  repayment  of  the  principal  and  interest  of  the 
money  advanced,  and  waiving  any  claim  to  damages. 
28 


CASES  IN  CHANCERY.  27 

The  bill  charged  that  the  defendants  were  not  only  jointly  1817. 
interested  in  the  patents,  but  in  the  different  shops  and  build-  ^^^^^^ 
ings  for  constructing  steam-boats,  and  especially  in  those  at  LAWRENCK 
Pittsburgh ;  and  to  show  this  joint  interest,  the  bill  set  forth  Dj^E 
articles  of  an  agreement  between  F.  and  E.  P.  L.  and  R. 
L.  L.  in  July,  1814,  expressly  recognizing  their  joint  interest 
and  concern,  under  the  agreement  of  the  10th  of  October, 
1802,  between  F.  and  R.  R.  L.,  and  referring  also  to  the  boat 
building  by  the  defendants,  or  their  agents,  for  the  plaintiffs. 
That  Latrobe  was  the  agent  of  all  the  patentees,  in  publishing 
the  proposals,  and  acted  with  their  knowledge  and  approba- 
tion ;  and  the  stipulation  that  the  boat  should  be  built  under 
the  direction  and  responsibility  of  the  patentees  was  a  mate- 
rial inducement  to  the  plaintiffs  to  form  the  company,  and  to 
engage  in  the  boat.  That  before  any  advances  were  made 
by  the  plaintiffs,  the  proposals  by  Latrobe  were  read  by  E. 
P.  L.  and  R.  L.  L.,  who  knew  that  the  plaintiffs  were  acting 
on  the  faith  of  those  proposals,  but  never  made  known  their 
disapprobation,  or  disavowal  thereof;  and  that  even  if  La- 
trobe and  Fulton  acted  without  the  authority  of  E.  P.  L, 
and  R.  L.  L.,  yet  their  silence  and  concealment  of  the  fact 
was,  under  the  circumstances,  fraudulent,  and  rendered  them 
responsible  to  the  full  extent  of  the  proposals. 

*The  bill  prayed  that  the  defendants  might  be  decreed  to  [  *  28  j 
refund  to  the  plaintiffs  all  the  moneys  advanced  by  them, 
with  interest  and  damages ;  that  the  executors  of  Fulton 
might  admit  assets  sufficient,  or  render  a  true  account  of  the 
same;  that  the  plaintiffs  might  be  relieved  from  the  perform- 
ance of  the  covenants  contained  in  the  proposals,  or  in  the 
agreement  of  the  7th  of  February,  1815,  and  that  those  propo- 
sals, and  that  agreement,  might  be  cancelled,  and  that  the 
partnership  formed  thereby  might  be  dissolved,  and  for  gen- 
eral relief. 

The  answer  of  the  executor  and  executrix  of  Fulton  ad- 
mitted the  material  facts  stated  in  the  bill. 

E.  P.  L.  and  R.  L.  Livingston  also  put  in  their  answer, 
in  which,  among  other  things,  they  denied  that  the  work- 
shops and  establishments  at  Pittsburgh,  as  stated  in.  the  bill, 
were  erected  and  owned  by  Fulton  and  R.  R.  L.,  but  thev 
have  heard,  and  believe,  that  they  were  erected  by  the  Mis- 
sissippi Company,  or  their  agent,  and  are  now  owned,  or  have 
been  sold,  by  them;  and  that  the  boats  for  the  purpose  of 
navigating  the  Mississippi  and  Ohio,  below  the  falls,  were 
built,  as  they  believe,  by  the  company  or  their  agents,  and 
not  by  the  agents  and  workmen  of  Fulton  and  Livingston. 
That  if  Fulton  took  upon  himself  to  employ  agents  or  workmen 
for  the  purpose,  so  as  to  become  responsible  for  their  skill  and 
fidelity,  they  are  satisfied  that  he  did  it  without  the  knowledge 

•29 


28  CASES  IN  CHANCERY. 

1817.  or  approbation  of  R.  R.  Livingston,  in  his  lifetime,  so  as  to 
^^-^~*^s  create  no  responsibility  therefor  on  his  legal  representatives  ; 
LAWRENCE  and  they  denied  that  they  had  incurred  any  such  responsibility 
y^'j.  by  any  act  or  consent  of  theirs,  or  by  any  act  or  omission  of 
>  n't. >n,  by  their  approbation  or  authority.  They  admitted  that 
part  of  the  funds  for  the  construction  of  the  said  boat  or  boats 
was  furnished  by  the  companies,  but  they  stated  that  there  was 
a  deficiency  which  was  supplied  by,  or  on  the  credit  of  Fulton, 
in  the  first  instance,  but  in  which  they,  by  a  subsequent 
|  *  29  ]  arrangement,  became  interested  with  Fulton,  *and  the  amount 
of  which  advances  was  still  due  to  them  and  to  his  estate. 
That  the  defendants  were,  in  a  great  measure,  ignorant  of 
the  acts  and  transactions  of  Fulton,  in  relation  to  steam-boats 
in  other  places ;  and  they  insisted  that  if  he  had  entered  into 
such  engagements  and  responsibilities  as  are  stated  in  the 
bill,  they  are  in  no  respect  personally  liable  therefor,  except 
so  far  as  they  may  be  so,  as  a  necessary  consequence  of  their 
interest  in  the  patents  and  exclusive  grants  relative  to  steam- 
boats and  the  construction  and  employment  thereof;  and 
they  positively  denied  that  they,  or  Mary  Livingston,  to  their 
knowledge,  ever  did,  directly  or  indirectly,  authorize  Fulton 
so  to  act,  or  to  enter  into  any  such  negotiations  or  contracts 
as  are  stated  in  the  bill ;  and  they  denied  that  Latrobe  ever 
was  employed  by  them,  or  by  Fulton,  with  their  consent  or 
knowledge,  as  agent  for  the  purposes,  and  with  the  powers, 
mentioned  in  the  bill,  or  in  any  way  to  make  them  answera- 
ble to  the  plaintiffs  for  his  acts.  They  admitted,  however,  that 
they  had  heard  that  F.,  or  some  person  for  him,  but  who 
they  did  not  know,  had  issued  proposals  to  establish,  by 
means  of  a  company,  a  steam-boat  on  the  Ohio  above  the 
falls ;  but  never  having  seen  them  before  they  were  issued, 
nor  since,  unless  transiently,  and  without  examination,  in  print, 
and  having  no  copy  of  them,  they  could  not  speak  with  cer 
tainty  as  to  them.  That  they  did  not  know  when  they  were 
issued  and  circulated,  but  if  at  the  time  stated  in  the  bill,  it 
was  before  they  were  interested  in  steam-boat  rights  and 
property  ;  and  so  they  could  not  be  bound  by  such  proposals. 
They  denied  that  they  were  ever  consulted  at  all  in  relation 
to  such  proposals,  or  that  the  said  Mary  Livingston,  to  their 
knowledge  or  belief,  was  consulted,  or  had  any  personal 
knowledge  of,  or  ever,  in  any  way,  assented  to  them.  They 
denied  all  personal  knowledge  of  the  formation  of  the  com- 
pany, by  the  plaintiffs,  under  the  said  proposals,  though  they 
[  *  30  ]  had  heard  *of,  and  believed  the  fact ;  and  they  denied  all 
agreement  with  the  plaintiffs,  or  either  of  them,  or  by  F., 
never  having  given  him  any  authority,  expressly  or  tacitly,  to 
bind  them,  in  any  manner,  to  the  terms  of  the  said  proposals 
or  agreement,  or  for  the  appointment  of  an  agent  at  Pitts 
30 


CASES  IN  CHANCERY. 


30 


burgh,  or  elsewhere;  and  they  denied  having  known  or  1817. 
adopted  the  said  proposals  before  the  formation  of  the  said  ^^-^~**-s 
company ;  and  they  admitted  that  they  had  never  expressed  LAWRENCK 
any  disapprobation  of  the  proposals,  or  taken  any  measure  to 
caution  the  plaintiffs,  or  others,  that  they  did  not  intend  to 
be  bound  thereby,  &c.  That  they  were  ignorant  of  the  in- 
ducement which  led  to  the  agreement  of  the  7th  of  January, 
1815,  stated  in  the  bill;  that  they  were  never,  at  any  time, 
consulted  on  the  subject,  nor  did  they  or  any  person,  by  their 
authority,  ever  consent  to  execute  that  agreement,  nor  were 
they  ever  requested  so  to  do ;  and  that  they  were  not,  there- 
fore, bound  to  fulfil  the  same,  as  parties  thereto.  They  ad- 
mitted their  joint  interest  with  F.,  or  his  representatives,  to 
the  amount  of  two  thirds  of  the  interest  of  R.  R.  L.,  in  the 
rights,  privileges,  and  property  of  steam-boats,  in  the  lifetime 
of  Mary  Livingston,  and  in  the  whole  of  that  interest  since 
her  decease.  That  the  machinery  for  the  boats,  as  they  are 
informed  and  believe,  was  made  in  new  work-shops,  erected 
at  or  near  Pittsburgh,  by  the  Ohio  Company,  or  their  agent, 
Latrobe,  in  which  work-shops,  the  said  defendants  never,  to 
their  knowledge  or  belief,  had  any  interest.  That  Latrobe 
never  was  the  agent  of  the  said  defendants,  unless  he  could 
be  made  their  agent  without  their  knowledge  or  consent,  ex- 
cept so  far  as  they  may  have  been  interested  in  the  said 
steam  and  tow-boats  of  the  plaintiffs,  in  consequence  of  their 
being  part  owners  of  the  patent  rights  and  privileges. 

The  material  parts  of  the  evidence  are  sufficiently  stated 
in  the  opinion  delivered  by  the  Court. 


*The  cause  was  argued  in  July  last,  by  T.  A.  Emmet  and 
J.  L.  Riker,  for  the  plaintiffs,  and  by  Riggs,  S.  Jones,  jun., 
and  Baldwin,  for  the  defendants. 

The  cause  stood  over  for  consideration,  and  the  following 
opinion  was,  this  day,  delivered  by  the  Court. 

THE  CHANCELLOR.  The  representatives  of  Fulton,  and 
the  two  Livingstons,  place  their  defence  on  very  different 
grounds.  The  latter  deny  that  Fulton  had  any  authority  to 
bind  them,  in  whatever  responsibility  he  may  have  incurred 
in  his  negotiations  with  the  complainants. 

I  shall  first  consider  the  demand  as  it  respects  the  defend- 
ants Edward  and  Robert  Livingston. 

1.  The  only  part  of  the  printed  proposals  issued  by  La- 
trobe, in  the  spring  of  1813,  which  contains  any  thing  like  a 
special  covenant,  is  in  the  3d  and  4th  articles,  in  which  it  is 
declared,  that  the  boat  shall  be  calculated  to  carry  freight, 
and  shall  be  built  under  the  immediate  direction  of  the  pat- 
entees, who  shall  appoint  an  agent  at  Pittsburgh  for  the 

31 


[*31J 


(A  cber  1. 


31  CASES  IN  CHANCERY. 

1817.       purpose,  and  that  the  patentees  were  to  be  "  responsible  for 

v^^vx-^x   the  perfect  construction  and  performance  of  the  boat."     In 

LAWRENCE     the   agreement  which  was  afterwards  made  and   executed 

v-  between  Fulton  and  a  majority  of  the  company,  in  respect  to 

their  shares,  the  same  engagement,  with  some  additions,  was 

entered  into,  so  far  as  Fulton  was  concerned.     He  was  to  be 

responsible  for  the  perfect  construction  and  performance  of 

the  boats,  so  as  to  carry  at  least  100  tons  burden,  and  to  run 

at  least  four  miles  an  hour  in  still  water.     The  whole  grava* 

men  (if  any)  to  be  deduced  from  the  pleadings  and  proofs, 

appears  to  me  to  consist  in  the  failure  of  the  engagement  as 

to  the  construction  and  performance  of  the  boat. 

The  Livingstons  deny  that  Latrobe  was  their  agent,  or 
that  he  made  these  proposals  by  their  authority,  assent,  or 
knowledge.  They  equally  deny  any  authority  in  Fulton  to 
bind  them  by  such  a  contract. 

[  *32]  *The  great  point  in  the  case  is,  whether  there  is  evidence 

of  any  such  authority  existing  at  the  time,  or  of  any  subse- 
quent recognition  of  it. 

The  contract  of  partnership  entered  into  between  the  late 
Robert  R.  Livingston  and  Fulton,  on  the  10th  of  October, 
1802,  does  not  appear  to  contain  any  power  that  touches  the 
case.  That  contract  provides  for  the  construction  of  a  pas- 
sage-boat, moved  by  the  power  of  the  steam-engine,  to  be 
used  on  the  Hudson,  and  that  the  patent  for  such  a  boat 
should  be  taken  in  the  name  of  Fulton,  and  the  property 
thereof  equally  divided,  and  also  the  emoluments  of  it ;  and 
that  the  number  of  boats,  offices,  and  agents,  should  be  aug- 
mented or  diminished,  as  the  parties  should  think  proper, 
and  that  if  either  party  should  die  within  the  14  years,  or 
before  the  termination  of  the  patent,  his  heirs  or  assignee 
should  be  considered  an  active  partner. 

This  was  a  very  special  partnership,  and  certainly  con- 
tained no  power  in  one  party  to  bind  the  other,  by  a  cove- 
nant as  to  the  construction  of  boats  to  be  built  by  third 
persons  for  their  own  use,  under  a  patent  license. 

This  was  the  only  instrument  declaring  the  association 
between  Livingston  and  Fulton,  during  the  lifetime  of  the 
former.  But,  afterwards,  on  the  25th  of  July,  1814,  there 
was  a  new  agreement  between  Fulton  and  the  two  represen- 
tatives of  Robert  R.  Livingston,  deceased.  That  agreement 
recited  that  they  were  sole  proprietors  and  acting  partners 
in  the  rights  and  privileges  of  steam  navigation,  for  which 
patents  had  been  issued,  and  divers  statutes  passed  in  favor 
of  the  parties,  in  pursuance  of  the  agreement  of  October, 
1802,  and  that  they  were  desirous  to  modify  the  articles,  as 
to  the  Hudson  river,  and  to  explain  their  rights  in  certain 
particulars,  leaving  the  articles  in  force ,  in  other  respects 
32 


CASES  IN  CHANCERY.  *33 

The  parties  to  that  agreement,  in  the  7th  and  8th  articles  of        1817. 
it,  entered  into  certain  stipulations,  which  referred  to  the  <^^-~^~^, 
personal  services  rendered  *by  Fulton,  in  the  concerns  of  the     LAWRENCE 
general  establishment,  and  in  superintending  the  making  and        DAV^£ 
completing  the  steam-boats  then  building,  viz.  one  for  the 
Mississippi,  one  for  the  Ohio,  and  two  for  the  Hudson;  and 
the  7th  article  evidently  contemplated,  that  the  profits  of 
those  personal  services  would   have  been  a  joint   concern 
without  the  modification  there  agreed  to. 

The  plaintiffs  aver,  that  the  boat  alluded  to  in  those  arti- 
cles, as  building  on  the  Ohio,  was  the  one  in  question  in  this 
case,  and  the  answer  of  the  representatives  of  Fulton  admits 
the  fact,  and  the  answer  of  the  others  does  not  deny  it. 
They  admit  that  the  article  may  allude  to  their  interest  in 
those  uoats,  as  part  owners  of  the  patent  rights  and  privi- 
leges. But  if  it  does,  what  then  ?  The  Livingstons  had  an 
interest,  no  doubt,  under  their  articles  of  1802,  in  all  emolu- 
ments resulting  from  the  patents  for  steam  navigation,,  and 
the  sales  and  licenses  under  them  ;  and  the  personal  service? 
alluded  to  in  those  articles  were,  no  doubt,  those  bestowed 
on  subjects  and  property  in  which  the  parties  had  a  common 
interest.  But  did  that  interest  bind  them  to  Fulton's  con- 
tracts for  building  boats  ?  I  think  it  would  be  dangerous  to 
push  to  this  extent  the  authority  of  each  partner  under  the 
articles  of  1802,  or  the  modification  made,  or  construction 
given  to  them,  by  the  agreement  of  1814.  A  joint  interest 
in  a  patent  may  exist  in  full  force,  and  yet  have  no  connec- 
tion with  a  special  covenant  to  construct  a  boat  for  the  ben- 
efit of  an  assignee.  Such  a  power  is  no  necessary  part  of 
the  joint  concern.  The  Livingstons  may  have  an  interest  in 
all  the  branches  of  steam  navigation  arising  under  the  patents, 
and  even  in  the  personal  services  of  Fulton  bestowed  on  their 
common  concern,  without  being  bound  by  his  special  under- 
takings. There  must  be  some  other  authority  to  bind  them 
than  what  is  to  be  deduced  from  the  articles  of  1802.  The 
modification,  in  1814,  gave  no  new  power  to  each  partner. 
This  was  clearly  not  within  its  intention.  It  only  regulated 
*their  then  existing  interests.  A  covenant  to  superintend  the  [  *  34 
building  of  a  boat  for  the  benefit  of  a  company,  was  quite  a 
separate  transaction.  It  had  no  more  connection  with  the 
enjoyment  and  exercise  of  their  community  of  privileges 
under  the  patent,  than  if  there  had  been  a  covenant  to  pro- 
cure the  wood  and  iron  for  the  boat,  or  to  superintend  the 
navigation,  and  freight,  or  cargo,  of  her,  when  in  service. 
The  price  of  a  license  to  build  and  use  a  steam-boat,  may 
enure  to  the  defendants  jointly ;  so  if  an  interest  be  reserved 
in  the  boat  in  connection  with  the  purchasers,  that  interest 
might  be  joint.  These  are  plain  partnership  rights,  which 

VOL.  III.  5  33 


•34  CASES  IN  CHANCERY 

1817.       are  intelligible  to  all.     But  if,  upon  the  sale,  the  purchaser 
v.^^^-.^x  should  have  contracted   with  Fulton,  as  he  would  with  a 
LAWRENCE     shipwright,  to  build  the  boat,  or  as  a  captain  to  navigate  her 
DALE.        afterwards,  would  any  person  have  naturally  conceived  that 
such  a  contract  was  also  a  partnership  business,  and  bound 
equally  all  persons  interested  in  the  patent  ?     These  are,  in 
their  nature,  personal,  not  partnership  concerns,  arid  to  make 
the  partnership  liable,  a  special  agreement   from  the  part- 
ners must  appear.     There  must  be  some  authority  beyond 
the  mere  circumstance  of  partnership,  to  bind  the  Livingstons 
to  this  covenant. 

Though  Latrobe  subscribed  his  printed  proposals  as  agent 
for  the  Ohio  steam-boat,  and  for  the  patentees,  there  is  no 
evidence  that  the  Livingstons  ever  authorized  or  acknowl- 
edged his  agency.  He  was  the  agent  of  Fulton,  and  of  him 
only.  Not  a  witness  traces  any  act  or  confession  to  the  Liv- 
ingstons, that  contains  the  least  recognition  or  acknowledg- 
ment of  any  authority  from  them,  either  in  Latrobe  or  Fulton, 
to  issue  those  proposals,  or  to  carry  them  into  effect.  Those 
witnesses  who  understood  or  believed  that  the  Livingstons 
were  jointly  concerned  in  circulating,  or  in  avowing  or  in 
acting  under  those  proposals  of  Latrobe,  do  not  give  us  a 
single  act  or  confession  of  theirs,  to  warrant  the  conclusion 
or  belief.  The  expenses  were  defrayed  by  Fulton,  and  the 
[  *  35  ]  drafts  were  all  upon  *him.  He  declared  to  Hoffman,  a  clerk 
of  the  defendants,  that  the  Livingstons  were  not  interested 
in  the  expenses  of  that  boat,  and  they  told  that  witness  the 
same  thing.  The  only  circumstance  from  which  they  could 
possibly  be  charged  is,  that,  knowing  of  those  proposals,  they 
preserved  silence,  without  giving  notice  to  the  plaintiffs,  or 
to  the  public,  that  they  were  not  bound  by  Fulton's  engage- 
ment. 

But  what  reason  had  they  to  presume  that  any  person  was 
in  an  error  on  that  point  ?  We  have  no  evidence  that  the 
plaintiffs  were  imposed  upon  by  that  silence.  The  knowl- 
edge of  the  contract  is  not  traced  up  to  the  Livingstons,  at 
any  very  early  period  of  it.  They  had  no  interest  whatever 
in  the  patents,  when  the  proposals  issued,  and  were  made 
known  in  March,  1813.  The  interest  of  the  late  Robert  R. 
Livingston  was  then  vested,  by  will,  in  his  widow.  This  will 
and  its  contents  the  defendants  were  called  upon  by  the  bill 
to  disclose,  and  it  is  decisive  that  the  proposals  of  Latrobe 
could  not  have  been  their  proposal.  Their  existing  rights 
did  not  accrue  until  October,  1813,  and  by  that  time  the 
company  was  formed,  and  Latrobe,  as  Fulton's  agent,  had 
commenced  the  building  of  the  boat.  The  case  has  no  anal- 
ogy to  those  in  which  silence  is  construed  into  tacit  assent, 
and  as  evidence  of  imposition.  These  defendants  never  came 
34 


CASES  IN  CHANCERY.  35 

in  contact  with  the  operation.     They  were  never  consulted        1817. 
or  applied  to  on  the  subject.     These  two  defendants  were  ^*r-^~*^ 
well  known  to  most  of  the  plaintiffs,  and  accessible  to  them     LAWRENCK 
almost  daily ;  and  yet,  while  this  contract  between  the  plain-        D^LE 
tiffs  and  Fulton  was  made,  and  was  carrying  into  operation 
with  great  expense,  and  much  correspondence  and  negotia- 
tion, for  the  space  of  two  years,  not  one  solitary  communica- 
tion was  made  from  either  of  the  plaintiffs  to  them.     The 
plaintiffs  dealt  with  Fulton  exclusively,  and  took  no  notice  of 
these  defendants ;  yet  they  now  contend  that  those  defend- 
ants were  parties  to  their  contract,  and  equally  responsible 
*\vith  Fulton.     I  do  not  think  that  the  plaintiffs  are  entitled          [  *  36  ] 
to  complain  of  silence. 

2.  But  admitting  that  the  Livingstons  were  bound  equally 
with  Fulton,  the  next  point  to  be  considered  is,  Were  the 
plaintiffs  entitled,  under  the  circumstances  of  the  case,  on 
the  25th  of  April,  1815,  to  abandon  the  boats,  and  to  call 
upon  the  representatives  of  Fulton  to  refund  the  moneys  they 
had  expended,  with  interest  ? 

The  plaintiffs  cannot  justify  their  attempt  to  rescind  the 
contract  from  any  delay  in  the  progress  of  the  work ;  for  after 
the  death  of  Fulton,  they  assumed  the  business  themselves, 
and  directed  CooJce,  their  agent,  to  press  on  the  work  with 
all  diligence,  and  to  start  the  boats  as  soon  as  possible.  This 
is  what  one  of  the  plaintiffs  writes,  on  the  29th  of  March, 
1815,  as  secretary  to  the  company,  after  stating  that  the 
company  had  met  and  taken  a  view  of  the  whole  case.  It  is 
also  to  be  observed,  that  there  was  no  time  limited,  in  any 
contract  on  the  subject,  for  the  completion  of  the  boats. 

Nor  does  it  appear  to  me  that  the  plaintiffs  can  be  permit- 
ted to  set  up  the  extraordinary  expenses  incurred  under  the 
agency  of  Latrobe,  as  a  justifiable  cause  for  rescinding  the 
contract.  There  is  some  explanation  given  of  the  cause  of 
an  excess,  far  exceeding  the  original  calculations  of  the 
plaintiffs  and  of  Latrobe,  in  the  fact,  that  the  then  exist- 
ing war  had  rendered  labor  and  materials,  especially  iron, 
extremely  dear.  This  is  so  stated  by  one  of  the  witnesses. 
But  though  I  can  readily  suppose  the  plaintiffs  were  afflicted 
by  their  mistaken  calculations  of  the  expense,  and  that  there 
was  very  justifiable  cause  for  removing  Latrobe,  yet  I  do  not 
perceive  any  specific  engagement  of  Fulton  on  this  point. 
He  was  to  be  responsible  for  the  construction,  but  not  for  the 
expense  of  the  boat.  And  when  the  plaintiffs,  by  their  reso- 
lution of  the  9th  of  September,  1814,  requested  the  discharge 
of  Latrobe,  and  he  was  accordingly  discharged,  and  another 
agent,  *agreeable  to  them,  appointed,  the  plaintiffs  may  be  [  *  37  J 
considered  as  renouncing  their  right  to  rescind  the  contract, 
on  the  ground  of  his  extravagant  expenditures.  Above  all, 

35 


37  CASES  IN  CHANCERY. 

1817.       are  *ney  precluded  from  this  objection,  by  their  new  agree 
v^^-x^—^^  ment  with  Fulton,  on  the  7th  of  January,  1815,  and  which 
LAWRENCE     was  signed  by  a  majority  of  the  plaintiffs  in  interest.     They 
DALE.        therein  acknowledge  that  the  expenses  had  then  exceeded,  by 
12,000  dollars,  the  original  capital  stock,  and  yet  they  deter- 
mine to  persevere  on  a  new  plan,  and  with  still  increasing 
expenses. 

I  see  no  ground  on  which  they  could  justifiably  abandon 
the  contract,  unless  it  should  be  for  a  breach  of  it,  as  to  the 
construction  of  the  boat.  There  is  no  other  specific  engage- 
ment by  Fulton,  either  in  the  printed  proposals  of  Latrobt, 
or  in  the  articles  of  agreement  of  January,  1815,  which  they 
can  allege  to  have  been  broken. 

The  boat,  according  to  Latrobe's  proposals,  was  to  be  built 
under  the  direction  of  the  patentees,  who  were  to  appoint  an 
agent  for  that  purpose,  and  who  were  to  be  responsible  for 
the  perfect  construction  and  performance  of  the  boat.  Ful- 
ton assumed  these  proposals  as  his  own,  and  recognized  La- 
trobe  as  his  agent  in  making  them.  He  was,  consequently, 
responsible  to  the  company  for  the  fulfilment  of  this  contract ; 
and  how  was  it  performed  ? 

An  agent  was  appointed  for  the  purpose,  and  the  building 
of  the  boat  commenced  at  Pittsburgh,  under  his  agency,  in 
October,  1813.  We  hear  no  more  of  the  business,  until  July 
10th,  1814,  when  Fulton  wrote  a  letter  to  Latrobe,  (for  I 
have  looked  at  every  paper  without  nicely  weighing  its  com 
petence,  in  order  to  inform  myself  of  every  fact,)  and  in  that 
letter  he  acknowledged  that  a  boat  was  to  be  built,  in  the 
best  possible  manner,  to  suit  the  waters  of  the  Ohio,  arid  that 
Latrobe  had  misapplied  funds,  by  building  shops,  when  Fulton 
had  them  of  his  own.  In  September  following,  the  company 
met,  and  insisted  that  Latrobe  should  be  discharged,  and  say 
[  *  38  ]  that  they  would  not  ^advance  any  more  funds  until  he  was 
discharged.  It  was,  accordingly,  done  ;  and  the  great  head 
of  complaint  was  his  expenditures,  and  not  the  construction 
of  the  boat.  David  Cooke  was  appointed  his  successor,  and 
the  steam-boat  was  launched  at  the  time  Latrobe  was  dismiss- 
ed. The  work  then  goes  forward,  and,  for  any  thing  that  ap- 
pears in  the  case,  to  the  satisfaction  of  both  parties,  until  the  7th 
of  January,  1815,  which  forms  a  new  and  important  epoch  in 
the  history  of  the  business.  A  majority  in  interest  of  the  com 
pany,  and  Fulton,  enter  into  a  new  agreement,  in  which,  for 
the  first  time,  the  company  appear  to  assume  form  and  sub- 
stance as  a  regular  copartnership.  We  cannot  doubt  but 
that  they  possessed,  at  the  time,  all  the  knowledge  that  be- 
longed to  the  subject.  They  knew  what  had  been  previously 
expended,  and  how  extravagantly  it  had  been  expended,  (if 
extravagant  at  all,)  by  Latrobe,  and  they  knew  the  apparent 
36 


CASES  IN  CHANCERY. 

size  and  construction  of  the  boat,  and  that  she  was  already  1817. 
afloat.  It  cannot  be  supposed  that  they  were  ignorant  of  all 
this  ;  and  they  must  have  known,  as  well  as  Fulton,  the  depth 
of  the  waters  of  the  Ohio,  for  this  was  a  matter  of  public 
notoriety,  and  was  a  knowledge  essential  to  the  business  they 
had  assumed.  They,  then,  armed  with  this  information, 
enter  into  a  new  and  very  special  agreement  with  Fulton,  in 
which  it  was  contemplated,  no  doubt,  that  the  other  defend- 
ants would  become  parties.  This  agreement  recites  the  sub- 
stance of  the  former  proposals  of  Latrobc,  under  which  the 
company  had  formed  themselves  and  hitherto  acted,  and  it 
declares  that  the  building  of  the  boat  had  been  changed  in 
plan,  so  as  to  add  thereto  a  freight-boat,  to  be  towed ;  and, 
notwithstanding  the  expenditure  then  made  of  37,000  dollars, 
they  agree  to  advance  the  further  moneys  requisite  to  finish 
the  boats,  and  they  preserve  the  responsibility  of  Fulton,  for 
the  perfect  construction  and  performance  of  the  boats. 

I  cannot  but  be  of  opinion,  that  this  new  agreement  super- 
seded, altogether,  the  claims  of  the  parties  under  the  *vague  [  *  39 
and  undefined  terms  of  the  printed  proposals.  It  was  the 
substitution  of  a  new  and  formal  contract  to  that  preliminary 
arrangement,  in  which  the  plaintiffs,  for  the  first  time,  appear 
distinctly  as  a  regular  associate  body.  They  adopted  the  boat 
as  she  then  was ;  and  the  question  is,  whether  there  was  a 
failure  in  the  construction  of  the  boat,  in  the  April  following, 
so  as  to  warrant  the  plaintiffs  to  rescind  or  abandon  the 
contract,  and  call  for  the  return  of  their  money. 

The  articles  in  January  seem  to  have  defined  the  meaning 
of  the  engagement  to  be  responsible  for  the  perfect  con- 
struction and  performance  of  the  boats,  by  adding  thereto 
these  words,  so  as  to  carry,  at  least,  one  hundred  tons  burden, 
and  run,  at  least,  four  miles  an  hour  in  still  ivater.  Nothing  is 
here  said  as  to  her  draught  of  water.  CooJce  says  she  drew 
three  feet  of  water  when  empty.  This  fact  must  have  "been 
known  when  the  agreement  in  January  was  made.  There 
is  no  doubt  that  the  parties  adopted  the  plan  of  the  tow- 
boat,  to  meet  and  avoid  the  inconvenience  of  the  weight  and 
draught  of  water  of  the  steam-boat ;  for  Butler  testifies,  that  in 
1814,  or  1815,  Fulton  suggested  the  plan  of  the  tow-boat, 
because  it  was  ascertained  that  the  steam-boat,  with  her 
cargo,  would  draw  too  much  water  for  the  Ohio. 

But,  considering  the  covenant  without  any  such  accom- 
panying explanation,  and  as  meaning,  by  a  perfect  con- 
struction and  performance,  a  boat  suitable  to  the  waters  of 
the  Ohio  between  Pittsburgh  and  Louisville,  the  question 
occurs,  Have  not  the  plaintiffs  adopted  the  boat  as  it  was  ? 
and  are  they  not  precluded  from  saying  she  was  too  large  ? 

The  difficulty  and  uncertainty  of  navigating  on  the  Ohio, 

37 


39  CASES  IN  CHANCERY. 

1817.       seems  to. have  occurred  from  the  beginning.     The  original 

^*~^~^/  proposals    of  Latrobe    contemplated    that    the   boat  would 

LAWRENCE     "  lie  by  "  in  July  and  August,  on  account  of  the  lowness  ol 

DALE.        tne  water,  and  that  she  would  not  make  more  than  five  o. 

f  *  40  1         *s^x   trips>  eacn  wav>  during  the  year.     The  parties  were, 

accordingly,    when    they    subscribed    these    proposals,    duly 

apprized  of  this  difficulty,  and  of  the  inevitable  interruption 

of  the  navigation ;  and  all  their  contracts  must  be  construed 

in  reference  to  that   navigation  as  it  was  then  known  and 

declared. 

The  lamented  death  of  Fulton  occurred  soon  after  the 
execution  of  the  agreement  in  January,  and  the  plaintiffs 
then  took  into  their  own  hands  the  care  of  finishing  the 
boat,  and  pressed  on  the  work,  with  zeal,  until  the  26th 
of  April,  1815,  when,  in  consequence  of  information  re- 
ceived from  Stoudenger,  they  came,  suddenly,  to  the  reso- 
lution, that  the  steam-boat  would  not  answer,  and  that  the 
contract  was,  consequently,  void,  and  demanded  repayment 
of  their  money.  What  information  they  had  received,  which 
satisfied  them  the  boat  would  not  answer,  is  not  stated. 
Nothing  is  shown  to  have  existed  then,  which  was  not 
known  to  them  six  months  before ;  and  the  only  complaint 
in  the  letter  announcing  the  resolution  to  abandon,  relates  to 
the  expense. 

All  the  information  we  have,  on  the  head  of  the  failure 
of  the  contract  in  respect  to  the  construction  of  the  steam- 
boat, (for  there  is  no  complaint  of  the  tow-boat,)  is  derived 
from  the  three  witnesses  at  Pittsburgh.  Frisbie,  who  under- 
took to  finish  the  carpenter's  work  of  the  boat,  thinks  the 
former  work  not  quite  so  good  as  his  own,  though  it  would 
have  borne  inspection,  and  the  boat  was  a  little  hogged  in 
launching.  CooJce  says  the  boat  was,  upon  the  whole,  pretty 
well  built,  and  better  than  t*he  well-known  Hudson  river  boats, 
Car  of  Neptune  and  Paragon ;  and  that  the  machinery  was 
good.  There  is,  then,  no  real  objection  to  the  workmanship 
of  the  boat,  to  justify  the  relinquishment  of  the  contract ; 
and  when  the  plaintiffs  said  she  would  not  answer,  they  most 
certainly  had  no  such  imperfection  in  their  view.  It  was  the 
depth  of  water  she  drew  to  which  they  alluded. 

[  *  41  ]  *Frisbie  says,  that  the  boat,  according  to  her  original  plan 

or  contrivance,  would  have  drawn  too  much  water  to  have 
rendered  her  fit  or  convenient  for  the  navigation  intended 
for  her ;  that  she  might  have  made  one  trip  in  the  spring, 
and  one  in  the  fall ;  and,  if  ready  when  the  waters  were  high, 
have  made  several  trips  in  the  year.  Rowe  speaks  to  the 
same  effect  Cooke  says,  that  the  boat  drew  three  feet  when 
empty,  and  when  loaded  would  have  drawn  four  feet ;  and 
that  she  could  have  navigated  the  Ohio,  except  in  very  dry 
38 


CASES  IN  CHANCERY.  41 

seasons,  or  in  winter,  and  could  have  run,  on  an  average,  six        iS17. 
months ;  but  he  admits  that  a  boat,  to  navigate  to  the  best  ad-  •^r- v^s 
vantage  on  the  Ohio,  ought  not  to  exceed  three  feet  draught.     LAWRENCE 

The  answer  to  this  testimony  is,  that  the  parties  knew,  U^LE. 
when  the  boat  was  launched,  in  September,  1814,  what 
water  she  would  draw  when  empty.  They  modified  the 
contract,  and  altered  their  plan  in  January  following,  to  suit 
that  draught  of  water,  by  adding  the  tow-boat ;  and  I  cannot 
see  what  right  or  equity  they  have  to  complain  now  of  the 
original  construction  of  the  boat.  If  they  intended  to  have 
abandoned  the  boat  for  that  cause,  they  should  have  done  it 
when  she  was  launched,  and  when  an,  accurate  judgment 
could  have  been  formed,  and  probably  was  formed,  as  to  the 
water  she  was  to  draw.  Instead  of  that,  they  go  on  and 
adopt  her  as  she  was,  and  continue  their  work  upon  her,  and, 
afterwards,  vary  their  original  plan  to  meet  the  size  and 
weight  of  the  vessel.  The  construction  of  the  boat  was  the 
same  then  as  when  they  gave  up  the  contract. 

But  there  is  a  material  defect  of  testimony  on  the  point 
of  the  navigation  of  the  Ohio.  Frisbie  says  he  is  not  well 
acquainted  with  that  part  of  the  Ohio  between  Pittsburgh 
and  Louisville,  and  he  speaks  from  the  information  of  others. 
Roive  says,  also,  that  he  is  not  well  acquainted  with  the 
waters  of  the  river;  and  all  that  Cooke  knows  seems  to 
be  from  inquiries  of  others.  There  is  the  same  want  of 
*precise  and  certain  knowledge  on  this  subject,  in  the  case  [  *  42  ] 
before  us,  as  there  was  when  Latrobe  issued  his  proposals, 
and  gave  his  opinion  as  to  the  facility  of  the  navigation  of 
the  Ohio.  We  have  no  chart,  or  soundings  of  the  river,  or 
testimony  of  men  accustomed  to  navigate  it.  We  have  no 
actual  experiment  to  inform  us  how  far  the  boat  was  adapted 
to  the  river. 

There  is  no  fraud  set  up  in  this  case,  as  a  reason  for  re- 
scinding the  contract.  There  were  no  representations  as 
to  expense,  however  innocent  and  however  mistaken  the 
calculations,  but  what  the  plaintiffs,  with  full  knowledge  of 
the  fact,  and  of  all  the  circumstances,  have,  again  and  again, 
waiv.ed ;  and  if  the  boat  was  of  so  large  a  construction  as  to 
render  her,  in  a  great  degree,  unfit  for  the  use  intended,  they 
should  have  taken  their  stand  on  the  discovery  of  that  con- 
struction, which  discovery  was  made  known  to  them,  (as  far. 
at  least,  as  it  is  now  made  known,)  when  the  vessel  was 
launched.  If  the  law  allows  a  party  to  abandon  a  contract 
while  in  Jieri,  he  ought,  at  least,  to  act  promptly  and 
decidedly,  on  the  very  first  discovery  of  the  breach.  If  he 
negotiates  with  the  party  afterwards,  and  permits  the  work 
to  go  on,  he  certainly  waives  all  right  to  abandon.  There  is 
not  a  cause  to  contradict  this  doctrine,  which  is  founded  on 

39 


W  CASES  IN  CHANCERY. 

1817.       tne  plainest  principles  of  justice;  and  if  there  had  been  nc 
v^x-— v-**^  waiver,  nor  adoption  of  the  boat,  I  should  still  think  the 
in  the  Matter  of  testimony  of  the  boat's  unfitness  for  the  Ohio  too  imperfect. 
ROBERTS.      to  justify  so  extraordinary  a  measure  as  the  absolute  renun- 
ciation of  the  entire  contract.     Having  carried  the  work  so 
far,  I  think  they  ought  to  have  brought  the  question  of  the 
fitness  of  the  boat  to  the  waters  to  the  test  of  experiment. 
It  does  not  appear,  to  this  moment,  but  that  the  steam-boat, 
with  the  aid  of  the  tow-boat,  might  have  performed  as  many 
trips  in  a  year  as  was  in  contemplation  of  the  original  pro- 
posals.    Instead  of  waiting  for  a  trial,  the  plaintiffs,  in  a 
moment  of  despair,  and  duly  admonished  of  the  fallacy  and 
[  *  43  ]         *danger  of  such  speculations,  give  up  the  contract,  and  leave 
the  boats  to  be  sacrificed  on  execution,  and  now  call  upon 
this  Court  to  decree  the  repayment  of  their  money  from  the 
representatives  of  Fulton.     I  feel  and  regret  their  misfortune  ; 
but  I    cannot  transfer  that   misfortune   to   others,  without 
better  evidence  than  this  case  affords. 

The  bill,  as  to  all  the  defendants,  must,  consequently, 
be  dismissed ;  and  as  to  the  two  Livingstons,  it  must  be 
dismissed  with  costs. 

Decree  accordingly. 


In  the  Matter  of  ROBERTS,  a  Lunatic. 

[Applied,  7  Paige  267;  9  Id.  403,  442.  Criticised,  6  Daly  51.] 
A  commitee  of  a  lunatic  is  entitled  to  an  allowance,  by  way  of  com- 
pensation for  his  services,  in  receiving  and  paying  out  moneys,  within 
the  equity  of  the  statute,  (sess.  40.  ch.  251.)  authorizing  this  Court  tc 
make  a  reasonable  allowance  to  guardians,  executors,  and  administra- 
tors, for  their  services. 

Rule  as  to  the  rate  of  allowance  to  guardians,  executors,  and  adminis- 
trators. 

Octobers.  PETITION  of  Nehemiah  Alien,  the  committee  of  the 
lunatic,  praying  for  an  allowance  for  compensation,  and 
accompanied  with  a  master's  report,  stating  the  account  of 
the  committee,  and  that  he  had  received  1,906  dollars,  and 
paid  out  1,158  dollars,  in  small  sums,  and  that  five  per 
cent,  on  the  whole  sum  paid  out  and  received  would  be  a 
reasonable  allowance. 

E.  W.  King,  for  the  petitioner,  contended,  that  the  case 
was  within  the  equity  of  the  act  of  the  15th  of  April,  1817, 
(sess  40.  ch.  251.)  which  declares,  "that  it  shall  be  lawful 
40 


CASES  IN  CHANCERY.  43 

for  the  Court  of  Chancery,  in  the  settlement  of  the  accounts 
of  guardians,  executors,  and  administrators,  on  petition  or 
otherwise,  to  make  a  reasonable  allowance  to  them  for  their  in  the  Matter  of 
services,  as  such  guardians,  executors,  or   ^administrators,      ROBERTS. 
over  and  above  their  expenses,  and  that,  when  the  rate  of 
such  allowance  shall  have  been  settled  by  the  chancellor,  it 
shall  be   conformed   to   in  all   cases   of  the  settlement  of 
such  accounts." 

THE  CHANCELLOR  thought  the  case  within  the  equity  of 
that  statute,  and  adopted  the  following  rate  of  compensation, 
as  reasonable,  it  being  higher  than  the  allowances  to  the 
masters  and  registers  in  this  Court,  in  respect  to  the  receipt 
and  payment  of  moneys,  and  yet  not  so  high  as  to  inflame 
the  cupidity  of  such  trustees,  viz. 

Five  per  cent,  on  all  sums  received  and  paid  out,  not  ex- 
ceeding 1,000  dollars — (i.  e.  2  1-2  percent,  for  such  sums 
received,  and  2  1-2  per  cent,  for  such  sums  paid  out.) 

Two  and  an  half  per  cent,  on  any  excess,  between  1,000 
dollars  and  5,000  dollars. 

One  per  cent,  for  all  above  5,000  dollars. 

This  allowance  would  accordingly  produce,  on  an  estate 
of  10,000  dollars,  the  sum  of  200  dollars,  viz. 


The  1st,  $  1,000 $50 


Rule  of  allow- 
ance  to    euar- 
2d,          4,000 100  dians,      efecu- 

3d,       5,000  .  ...     50  tors>   Md   ad 

ministrators. 


$  10,000  $  200 

N.  B.  On  the  16th  of  October,  1817,  a  general  rule  was 
passed,  establishing  the  above  allowance  to  guardians,  ex- 
ecutors, and  administrators. 

VOL.  III.  6  41 


45* 


CASES  IN  CHANCERY. 


1817. 
<*-N/-^ 

M'lNTYRE 
V. 

MANCIUS. 


October  2. 


[*46] 


*M'!NTYRE  and  others  against  MANCIUS  AND  BROWN. 

[Reversed,  10  Jolius.  592.] 

In  a  bill  of  discovery  for  matters  material  to  the  defence  of  the  party,  in 
a  suit  at  law  against  him,  the  nature  of  the  defence  at  law  must  be 
stated,  otherwise  this  Court  will  not  grant  an  injunction. 

PETITION  of  the  plaintiffs,  stating  that  they  were  pros 
ecuted  at  law  in  the  Supreme  Court  by  the  defendants. 
That  the  cause  was  put  at  issue  on  the  17th  of  June  last. 
That  the  cause  is  noticed  for  trial  at  the  Circuit  Court,  to  be 
holden  at  Albany  on  the  7th  inst.  That  the  plaintiffs  filed 
their  bill  for  a  discovery  of  matters  therein  specified,  on  the 
29th  of  July  last.  That  the  defendants  entered  their  ap- 
pearance on  the  30th  of  July.  That  the  six  weeks  expired 
on  the  10th  of  September,  and  the  defendants  did  not  answer, 
but  on  the  23d  of  September,  filed  a  demurrer.  That  the 
answer  will  furnish  discovery  material  to  their  defence,  and 
without  which  it  would  be  unsafe  to  proceed  to  trial. 

Prayer  for  an  injunction. 

The  bill  for  discovery  stated,  in  substance,  that  the 
plaintiffs,  without  interest,  and  for  accommodation  of  Dow 
and  Menzies,  endorsed  their  note  for  4,000  dollars  in  blank. 
That  the  note  passed  to  the  defendant  M.  as  his  property. 
That  they  have  a  good  and  perfect  defence  to  the  note,  and 
that  the  other  defendant,  B.,  is  a  material  witness  for  them, 
and  had  not,  when  the  suit  was  brought,  and  has  not  now, 
any  interest  in  the  note.  That  the  suit  has  been  brought  by 
M.  under  the  blank  endorsement,  in  the  name  of  both  de- 
fendants, with  full  knowledge  of  the  materiality  of  Broivn's 
testimony,  and  with  the  sole  view  of  depriving  the  plaintiffs 
of  his  testimony.  That  there  are  facts  exclusively  in  his 
knowledge,  which  cannot  be  proved  aliunde,  and  that  D. 
and  M.  are  insolvent.  The  defendants  *demurred  to  the 
bill  of  discovery,  and  stated,  as  special  causes  of  demurrer, 
that  the  plaintiffs  have  not  set  forth  the  nature  of  their 
defence  at  law,  and  do  not  show  that  the  discovery  sought  is 
necessary,  or  would  be  material. 

Van  Buren,  (Att.  Gen.)  for  the  petitioners.  He  con- 
tended, that  it  was  not  necessary  in  the  bill  to  state  the 
nature  of  the  defence  at  law.  That  this  Court  is  not  to 
judge  of  the  materiality  of  the  discovery,  any  further  than  to 
see  that  it  is  not  obviously  frivolous.  (1  Bro.  95.  and  3  Bro. 
155.  Bishop  of  London  v.  Fytche,  and  Rendow  v.  Wyatt.} 
That  it  is  competent  and  material  to  show,  upon  the  trial 
42 


CASES  IN  CHANCERY.  46 

that  one  of  the  plaintiffs  at  law  has  no  interest  in  the  suit;        1817. 
(Bwkland  v.  Tankard,  5  Term  Rep.  578.)  and  that  the  blank 
endorsement   made   no   difference.     That  B.   might  be   a 
witness  at  law,  if  it  appeared  he  had  no  interest  in  the  suit, 
though  he  was  a  party  on  record. 

That  the  application,  by  petition,  is  proper,  and  that 
the  Court  would  restrain  the  process  at  law,  until  answer. 
(Appleynard  v.  Seton,  16  Vesey,  220.) 

Henry.,  contra,  objected,  that  the  plaintiffs  were  not  en- 
titled to  the  assistance  of  this  Court,  inasmuch  as  they  had 
not  stated  in  their  bill  the  nature  of  the  defence  at  law,  to 
enable  this  Court  to  determine  whether  the  discovery  should 
be  enforced.  This  was  indispensable,  and  it  rested  in  the 
knowledge  of  the  party.  (1  Johns.  Ch.  Rep.  302.  548. 
Cooper's  Eq.  PL  60.  Mitf.  52.) 

If  the  defence  was,  that  the  note  was  forged  by  one  or 
both  of  the  defendants,  or  that  it  was  given  for  money  won 
at  play,  or  for  usury,  the  discovery  could  not  be  compelled. 
(  Cooper's  Eq.  PL  202,  3,  4,  5,  6,  7.  1  Afk.  539.  1  Bro.  97. 
14  Vesey,  59.  65.  1  Johns.  Rep..361.  439.) 

The  demurrer,  though  joint,  is  good  as  to  the  defendant 
M.  (Cooper's  Eg.  PL  1133.  8  Viner,  403.  440.) 

*The  answer  of  Brown  could  not  be  material  as  respects  *  47  ] 

M.,  nor  impair  the  action  as  to  him. 

A  demurrer  lies,  if  the  discovery  does  not  appear  to  be 
material.  (Cooper's  Eq.  PL  198,  199.) 

The  defendants  are  also  charged  with  a  conspiracy  to  de- 
prive the  plaintiffs  of  Brown's  testimony,  and  on  that  ground 
are  not  bound  to  disclose. 

Brown  is  also  charged  with  maintenance,  in  lending  his 
name  to  carry  on  a  lawsuit ;  and  a  bill  for  that  discovery  may 
be  demurred  to.  (Cooper's  Eq.  PL  204.  note  m.~) 

THE  CHANCELLOR.  There  is  no  sufficient  equity  set  forth  October  z 
in  the  bill,  to  entitle  the  plaintiffs  to  the  aid  prayed  for.  The 
nature  of  the  defence  at  law  ought  to  have  been  stated.  For 
any  thing  that  appears  on  the  bill,  the  discovery  called  for 
may  be  utterly  useless  or  frivolous,  or  it  may  be  to  enable  the 
defendants  at  law  to  convict  the  plaintiffs  of  a  crime,  or  to 
subject  them  to  a  forfeiture.  It  is  not  improbable  that  the 
defence  at  law  is  usury,  and  then  the  assistance  of  this  Court 
would  be  obtained,  without  a  previous  offer  to  do  the  present 
defendants  justice,  by  paying  the  sum  equitably  due.  The 
plaintiffs  cannot  be  entitled  to  the  process  of  this  Court,  to 
stay  the  action  at  law,  unless  some  clear  and  certain  equity 
appears  upon  their  bill ;  and  unless  they  show  a  right  to  a 
discovery,  they  show  no  equity.  The  Court  ought  not  to 

43 


47 


1817. 

"^s^— ' 
BOYD 

v. 

MCUKAY. 


*48] 


CASES  IN  CHANCERY. 

compel  a  discovery,  when  the  object  or  purpose  of  it  is  kept 
concealed.  I  am  bound  to  exercise  a  sound  discretion  in  the 
application  of  the  powers  of  the  Court,  and  this  cannot  be 
done,  if  I  am  not  possessed  of  the  facts  to  enable  me  to  judge 
of  the  materiality  of  the  discovery.  I  ought  not  to  rely  ex- 
clusively upon  the  party's  own  opinion,  that  the  disclosure 
would  be  proper  and  material.  On  this  single  ground,  then, 
of  a  want  of  disclosure  by  the  bill,  of  the  purpose  *for  which 
the  discovery  sought  is  to  be  used,  the  motion  for  an  injunc- 
tion is  denied. 

Motion  denied. 


BOYD  AND  WICKHAM  against  MURRAY. 

Where  the  bill  charges  an  executor  or  trustee  with  abusing  his  trust, 
&c.,  an  injunction  will  not  be  awarded  in  the  first  instance,  but  a 
receiver  may  be  appointed. 

October!  THE  bill  charged  that  Jacob   Watson,  by  will,  appointed 

John  Murray  one  of  his  executors,  and  who  alone  acted. 
That  he  left  a  large  real  and  personal  estate,  and  gave  the 
executors  powers  and  directions  relative  to  the  distribution 
of  the  estate.  That  the  executor  confounded  the  estate  with 
his  own,  and  made  no  dividends  or  distribution.  That  he 
died,  leaving  the  defendant  his  executor,  who  is  acting  in  the 
same  manner,  and  is  in  failing  circumstances,  and  makes  no 
dividend,  &c.,  and  abuses  his  trust,  &c.  The  plaintiffs  are 
assignees  of  some  of  the  legatees.  Prayer  for  an  injunction, 
prohibiting  the  defendant  from  intermeddling  with  the  estate 
of  Jacob  Watson,  or  the  rents,  &c.,  by  collecting,  receiving, 
selling,  letting,  &c. 

Caines,  for  the  plaintiffs.     He  cited  12  Vesey,  4.   13  Vesey 
266.     2Aik.  213.     3  Bro.  621.     2  Bro.  158. 

THE  CHANCELLOR.  The  appointment  of  a  receiver  is 
quite  a  distinct  question  from  that  of  an  injunction.  The 
cases  cited  principally  relate  to  a  receiver  under  such  circum- 
stances. A  receiver  can  act.  He  is  a  substituted  trustee. 
*  (9  ]  But  after  injunction  no  person  can  act,  and  what  *are  to  be- 
come of  the  rights  of  other  legatees,  and  of  debtors  and 
creditors?  They  cannot  demand,  or  receive,  or  pay,  for 
there  is  no  representative  of  the  estate.  The  power  of  the 
44 


CASES  IN  CHANCERY.  49 

executor  is  wholly  suspended.     Such  an  extraordinary  meas-        1817. 
ure  as  an  injunction,  in  the  first  instance,  going  to  the  whole  v^~s/-^^ 
power  of  the  executor,  seems  not  to  be  conformable  to  pre-       AYMAR 
cedents,  and  might  be  very  injurious. 

Motion  denied. 


P.  AYMAR  AND  ELIZA  ANN,  an  Infant,  by  the  said 
PETER,  her  next  Friend,  against  W.  L.  ROFF. 

Where  a  man  was  married  to  an  infant  under  12  years  of  age,  who  im- 
mediately declared  her  ignorance  of  the  nature  and  consequences  of 
the  marriage,  and  her  dissent  to  it,  the  Court,  on  a  bill  filed  by  her 
next  friend,  ordered  her  to  be  placed  under  its  protection,  as  a  ward 
of  the  Court,  and  forbade  all  intercourse  or  correspondence  with  her 
by  the  defendant,  under  pain  of  contempt. 

THE  bill  stated  that  the  plaintiff  Eliza  A.,  the  infant,  was  October  10. 
the  daughter  of  Peter  A.,  and  under  12  years  of  age.  That 
in  August  last,  the  infant,  with  her  mother,  went  from  the 
city  of  New-  York  to  Staten  Island,  and  boarded  with  Mrs.  Roff. 
That  the  infant  there  became  acquainted  with  the  defendant, 
son  of  Mrs.  Roff,  who  was  about  23  or  24  years  of  age. 
That  on  the  27th  of  September  last,  the  defendant  proposed 
to  the  infant  to  go  to  a  minister  and  be  married.  That  the 
infant,  then  being  under  12  years  of  age,  and  ignorant  of  the 
duties  which  the  marriage,  if  legal,  would  impose,  and  con- 
sidering the  matter  as  a  frolic,  agreed,  and  went  with  the 
defendant  to  the  house  of  Robert  F.  Randolph,  a  Baptist 
minister,  residing  on  Staten  Island,  by  whom  the  ceremony 
of  marriage  was  on  that  day  performed.  That  the  infant 
immediately  returned  to  her  mother,  and  *the  plaintiff  P.  [  *  50 
A.  took  her  and  her  mother  back  to  New-York.  That  the 
said  infant  was  then  under  12  years  of  age,  being  born  on  the 
30th  of  September,  1805.  That  as  soon  as  she  was  informed 
of  the  duties  of  the  marriage  state,  and  what  it  was  in  her 
power  to  do,  she  did,  on  the  said  30th  of  September,  in  the 
presence  of  Thomas  Bolton,  a  master  in  chancery,  and  of 
several  other  persons,  declare  her  dissent  from  the  marriage, 
and  her  unwillingness  to  be  bound  by  it,  and  her  election  to 
live  under  the  protection  of  the  plaintiff;  and  this  declaration 
was  reduced  to  writing,  and  signed  by  the  infant,  and  attested 
by  the  master  and  others.  That  when  the  infant  made  the 
declaration,  neither  of  her  parents  was  present  nor  any  of 
her  relations ;  but  she  made  the  same  voluntarily ;  and  she 

45 


50  CASES  IN  CHANCERY. 

1817.       now  repeated  the  declaration,  and  declared  her  dissent  from 
v^^-v— «*^/  the  said  pretended  marriage,  and  disavowed  the  same.     Thai 
AYMAR       no  meeting  or  intercourse  of  any  kind  had  taken  place  be- 
itoJF.        tween  the  infant  and  the  defendant,  since  the  said  marriage. 
Prayer  for  a  subpoena,  and  that  the  infant  may  be  placed 
under  the  protection  of  the  Court,  as  its  ward,  and  that  the 
defendant  be  restrained,  by  the  order  or  process  of  the  Court, 
from  holding  any  conversation,  or  having  any  intercourse  or 
correspondence,  with   the   said   infant,  and  for  further  re- 
lief, &c. 

The  bill  was  sworn  to  by  the  plaintiff  Peter,  and  subscribed 
by  the  infant,  in  the  presence  of  the  master. 

D.  S.  Jones,  for  the  plaintiff. 

The  following  order  was  made  by  the  Court : — 

"  On  reading  the  bill,  and  on  motion  of  Mr.  D.  S.  Jones, 
of  counsel  for  the  plaintiffs,  and  the  said  infant  being  ex- 
amined in  Court,  and  repeating  the  same  declaration :  Or- 
dered, that  the  said  Eliza  Ann  Aymar  be  placed  under  the 
protection  of  this  Court  as  a  ward  thereof,  and  that  the  de- 
[  *  51  ]  fendant  refrain  from  holding  any  conversation,  *or  from  having 
any  intercourse  or  correspondence  with  the  said  Eliza,  so 
long  as  this  order  remains  in  force,  under  the  pain  of  incur- 
ring a  contempt." 

N.  B.  No  further  order  was  asked  for  in  this  case,  so  that 
nothing  further  was  done,  in  the  first  instance.  It  appears, 
however,  from  the  cases  referred  to  in  Eyre  v.  Countess  of 
Shaftsbury,  (2  P.  Wms.  Ill,  112.)  that  the  parson  and  all 
other  agents  concerned  in  the  marriage  of  infants,  without 
the  consent  of  their  guardians,  have  been  committed. 
46 


CASES  IN  CHANCERY. 


51 


C.   LIVINGSTON  and  others  against  P.  J.  L  VINGSTON. 

[Overruled,  24  N,  Y.  130;  13  Wend.  200.] 

To  a  bill  by  several  tenants  in  common  of  an  estate  in  Jamaica,  against 
their  co-tenant,  for  an  account  of  the  profits,  &c.,  it  is  not  sufficient 
for  the  defendant  to  plead  that  the  title  to  the  estate  may  be  brought 
in  question,  and  suggesting  that  he  has  an  exclusive  title  to  the  whole, 
and  ought  not,  therefore,  to  be  sued  in  this  Court.  The  defendant 
ought  to  set  forth  his  title  affirmatively,  that  the  Court  may  deter- 
mine whether  the  suit  ought  to  be  stayed,  until  the  title  is  established 
at  law. 

IN  1772,  Henry  Livingston,  of  the  island  of  Jamaica,  de- 
vised an  estate  in  that  island  to  his  four  nephews,  Philip  L., 
P.  P.  L.,  Walter  L.,  and  the  defendant,  in  fee,  as  tenants  in 
common.  The  testator  died  in  February,  1772,  having  ap- 
pointed the  four  devisees  his  executors.  P.  P.  L.  proved 
the  will,  and  managed  the  estate  for  the  proprietors,  until  his 
death,  in  1789,  having,  however,  previously  disposed  of  his 
share  of  the  estate  to  Robert  C.  Livingston,  in  fee. 

After  the  death  of  P.  P.  L-,  the  defendant  took  upon 
himself  the  management  of  the  estate,  and  appointed  agents 
to  superintend  it,  and  to  receive  the  profits ;  and  the  propor- 
tions *of  the  net  profits  were,  for  several  years,  regularly 
received  by  the  proprietors.  R.  C.  L.  died  in  1794;  Walter 
L.  in  1798,  and  Philip  L.  in  1809,  leaving  the  defendant 
the  sole  surviving  devisee  and  executor.  Since  the  death  of 
Philip  L.,  the  defendant  has  prevented  the  plaintiffs,  who 
are  the  legal  representatives  of  the  other  three  tenants  in 
common,  from  receiving  their  respective  shares  of  the  profits 
of  the  estate,  and  has  refused  to  exhibit  any  account  thereof, 
pretending  that  he  is  entitled  to  the  whole  estate. 

The  bill  was  filed,  to  compel  him  to  render  an  account, 
and  to  pay  to  the  plaintiffs  their  several  proportions  of  the 
proceeds  of  the  estate,  and  for  general  relief,  &c. 

The  defendant,  without  answering  the  bill,  pleaded,  that 
inasmuch  as  the  title  to  the  estate  may  be  involved  in  the 
controversy,  and  which  can  only  be  tried  by  the  laws  of  Ja- 
maica, he  ought  not  to  be  sued  in  this  Court  for  the  matters 
set  forth  in  the  bill,  and  submitted  whether  he  was  bound  to 
answer  it. 

Robinson,  for  the  plaintiffs. 

T.  A.  Emmet,  for  the  defendant,  contended,  that  the  plain- 
tiffs must  first  establish  their  title  at  law,  before  they  applied 
to  this  Court.  He  cited  1  Afk.  525.  543.  1  Vesey,  232. 
234.  446.  3  Vesey,  352.  1  Amb.  428.  1  Madd.  Ch.  74. 

47 


1817. 


LIVINGSTON 

v. 
LIVINGSTON 


Oitoher 


CASES  IN  CHANCERY. 

Harison,  in  reply,  said,  that  the  defendant,  having  entered 
as  tenant  in  common,  was  concluded  from  setting  up  a  pretend- 
LIVINGSTON  ed  claim  to  the  whole  estate  ;  for  it  could  be  nothing  but  a  pre- 
tence. He  ought  to  answer  and  set  forth  the  nature  of  his 
exclusive  title,  and  what  the  laws  of  Jamaica  are.  (Penn  v. 
Baltimore,  1  Vesey,  444.) 


1817. 


LIVINGSTON. 


THE  CHANCELLOR.  This  case  is  not  brought  within  the 
principle  contended  for  by  the  defendant's  counsel.  The 
53  ]  *bill  charges  that  the  plaintiffs  are  seised  in  fee  of  their  re- 
spective shares  of  the  estate  in  the  island  of  Jamaica,  and 
that  they  have,  until  lately,  received  their  proportion  of  the 
income  of  the  estate,  which  has  been  for  a  long  time  under 
the  management  of  the  defendant,  and  that  he  now  neglects 
or  refuses  to  account,  under  some  pretence  of  right  or  title 
to  the  whole  estate.  The  mere  suggestion  of  such  pretence 
is  not  sufficient  to  defeat  the  plaintiffs'  right  to  an  account. 
If  the  defendant  has  any  title,  in  exclusion  of  the  plaintiffs, 
he  must  set  it  forth  affirmatively,  and  it  will  then  be  in  time 
to  discuss  the  question,  whether  the  suit  ought  to  stay,  until 
the  title  is  established  by  the  local  tribunals  in  the  island  of 
Jamaica.  The  bill  avers  a  seisin  in  fee  by  the  plaintiffs,  as 
tenants  in  common,  and  that  the  exclusive  title  set  up  by  the 
defendant  in  conversation,  is  mere  pretence ;  and  so  I  shall 
intend  it  to  be,  until  the  title  is  shown  to  this  Court. 

Plea  overruled,  (a) 
(a)  Vide  M'Intyre  v.  Mancius,  ante,  page  40. 


CASES  IN  CHANCERY  53 

1817. 
GARDNER,  Administrator  of  GARDNER,  against  ASTOR. 

[Applied,  6  Johns.  Ch.  395.]  ASTOH. 

Where  the  equitable  and  legal  estate  are  united  in  the  same  person,  the 
former  is  merged  in  the  latter ;  as  where  the  owner  of  an  equity  of 
redemption  pays  off  a  subsisting  mortgage,  and  takes  an  assignment 
of  it,  it  will  be  intended  that  he  does  it  to  exonerate  his  estate  from 
the  encumbrance,  and  that  the  mortgage  is  extinguished,  unless  it  is 
made  to  appear  that  he  has  some  beneficial  interest  in  keeping  the  le- 
gal and  equitable  estates  distinct. 

ON  the  20th  of  August,  1800,  Daniel  R.  Durning  execu-     October  is. 
ted  a  bond  and  mortgage  in  fee   to  Evert  Bancker,  for  se- 
curing the  payment  of  2,500  dollars,  in  one  year. 

*In  1801,  all  the  right,  title  and  interest  of  Durning  in  the  [  *  54  ] 
mortgaged  premises  were  sold  by  the  sheriff,  under  a  fieri 
facias,  issued  on  a  judgment  against  D.  at  the  suit  of  Joseph 
Winter,  for  7,661  dollars  and  37  cents,  to  Philip  Brasher, 
who  was  the  highest  bidder,  for  4,933  dollars  and  17  cents. 
Brasher,  who  acted  as  the  agent  of  Winter  in  purchasing  at 
the  sheriff's  sale,  on  the  19th  of  December,  1801,  released  and 
conveyed  the  premises  to  Winter ;  and  the  deed  was  recorded 
the  8th  of  June,  1808. 

Bancker,  the  mortgagee,  on  the  5th  of  November,  1800, 
assigned  the  bond  and  mortgage  to  his  son  Christopher,  who 
died  soon  after,  having  made  his  will,  and  appointed  R. 
Strong  and  A.  Bancker  his  executors.  On  the  llth  of  De- 
cember, 1806,  Winter  paid  off  the  bond  and  mortgage  to  the 
executors  of  C.  B.,  and  took  an  assignment  thereof,  by  which 
he  became  possessed  of  the  legal  and  equitable  interests  in  the 
premises.  Being  so  seised  and  possessed  of  the  premises, 
Winter,  on  the  10th  of  January,  1811,  sold  and  conveyed  the 
same,  in  fee  simple,  to  the  defendant,  J.  J.  Astor.  for  the 
consideration  of  7,500  dollars,  with  full  covenants  of  seism, 
again^i,  encumbrances,  for  quiet  enjoyment,  and  warranty, 
which  deed  was  duly  recorded  on  the  15th  of  January,  1811. 

Winter,  by  an  assignment  dated  the  6th  of  March,  1810, 
transferred  the  bond  and  mortgage  to  Charles  Gardner,  (who 
died  intestate  ine  21st  of  December,  1811,)  as  security  for  a 
bond  of  3,500  dollars,  dated  the  22d  of  January,  1810.  This 
assignment  was  not  acknowledged  until  the  28th  of  January, 
1811,  and  was  not  recorded. 

The  defendant,  in  his  answer,  averred  that  he  purchased 
the  premises  of  Winter,  absolutely,  for  a  good  and  valuable 
consideration,  and  under  the  assurance  of  W.  that  there  was 
no  encumbrance  thereon,  and  without  any  knowledge  or  sus- 
picion of  the  assignment  of  the  mortgage  t°  (Gardner*  and 
with  the  full  assurance  and  belief  that  Winter  had  a  good  and 

VOL.  III.  7  •*$ 


55*  CASES  IN  CHANCERY. 

1817.  perfect  title  to  the  premises;  and  that  he  *verily  believet 
^tr-^-*^/  that  the  assignment  from  W.  to  G.,  though  dated  prior  to  the 
GARDNER  deed  from  W.  to  the  defendant,  was,  in  fact,  executed  subse- 

ASTOR        quently  to  the  defendant's  deed. 

The  cause  was  heard  on  the  bill  and  answer. 

D.  B.  Ogden,  for  the  plaintiff. 
Harison,  for  the  defendant. 

THE  CHANCELLOR.  This  cause  is  brought  to  a  hearing 
upon  the  bill  and  answer,  and  I  am,  therefore,  to  take  the 
answer  as  true. 

Winter,  in  December,  1801,  purchased  the  equity  of  re- 
demption in  the  mortgaged  premises,  and  he  shortly  afterwards 
paid  off  an  outstanding  mortgage,  and  took  an  assignment 
of  it,  and  thereby  united  in  himself  the  legal  and  equitable 
estates,  or  the  whole  interest  in  the  land.  The  question 
is,  whether  the  encumbrance  was  not,  by  that  act,  extin- 
guished. 

In  Forbes  v.  Moffatt,  (18  Vesey,  384.)  a  mortgagee  of 
land  afterwards  took  the  equity  of  redemption  by  will,  and 
it  was  held  to  be  a  question  of  intention,  declared  or  pre- 
sumed, whether,  in  taking  the  estate,  he  meant  the  charge  to 
sink  into  it,  or  to  continue  distinct  from  it.  The  charge, 
said  the  master  of  the  rolls,  had  always  been  held  to  merge, 
when  it  was  indifferent  to  the  party  in  whom  the  interests 
had  united,  whether  the  charge  should,  or  should  not  sink. 
In  the  present  case,  the  intention  of  Winter  was  to  extin- 
guish the  mortgage.  It  was  paid  off  by  him,  and  it  was 
many  years  after  that  redemption  before  he  undertook  to 
sell  and  assign  the  mortgage  as  a  subsisting  encumbrance. 
I  am  very  apprehensive,  that  the  sale  or  assignment  was 
made  with  unwarrantable  views.  It  bears  date,  indeed,  in 
March,  1810,  but  it  was  not  acknowledged  until  after  the 
sale  of  the  land  to  the  defendant,  in  January,  1811,  for  a  full 
price,  and  with  full  covenants  of  warranty.  The  answer 
[  *  56  ]  *avers  a  belief  that  the  assignment  was  subsequent  to  the 
deed  to  the  defendant,  and  there  is  no  proof  to  show  when 
the  assignment  was  actually  made. 

There  is  no  reason  appearing  from  the  case,  why  the 
two  estates  should  have  been  kept  distinct  in  the  hands  of 
Winter,  and  we  have  seen  to  what  abuse  it  may  lead.  Un- 
less some  beneficial  interest  for  keeping  up  the  distinction 
clearly  appears,  we  ought  rather  to  adopt  the  ordinary  and 
natural  conclusion,  that  when  the  owner  of  the  equity  of 
redemption  pays  off  a  subsisting  mortgage,  he  does  it  to 
exonerate  his  estate.  We  ought,  as  a  general  rule,  to  follow 
50 


CASES  IN  CHANCERY.  50 

the  principle,  that  in  the  union  of  the  equitable  and  legal  1817. 

estates   in   the    same    person,   the    former    is   metged   and  ^^s-*^ 

extinguished.  M'KAT 

Bill  dismissed,  without  costs.  GR^KK. 


M'KAY 


GREEN  and  others. 


[Referred  to,  88  N.T.  511.    Reviewed,  1  Paige  419  n.] 

The  personal  estate  of  an  intestate  is  the  primary  fund  for  the  payment 
of  debts,  and  is  to  be  first  resorted  to  by  the  creditor,  at  law.  He  can 
only  come  into  this  Court  for  an  account  and  discovery  of  assets,  and 
on  the  ground  of  a  £rus<  in  the  executor  or  administrator  to  pay  debts  ; 
not  for  a  sale  of  real  estate,  on  d  supposed  equitable  lien,  arising  from 
the  money  advanced  by  him  having  been  applied  to  purchase  the 
land. 

Whether  a  creditor,  in  an  ordinary  case,  and  without  some  special 
cause,  can  come  into  this  Court  to  collect  his  debt  from  an  executor 
or  administrator,  or  merely  to  enforce  a  ratable  distribution  of  assets  ? 
Qucere. 

THE  bill  stated,  that  J.  W.  Green,  in  1807,  contracted 
to  purchase  a  house  and  lot  in  New-York,  and,  wanting  five 
hundred  dollars  for  the  purpose,  applied  to  the  plaintiff  for 
his  assistance  to  raise  the  money,  representing  to  him  that  he 
would  mortgage  the  premises,  as  security,  for  any  advances 
that  the  plaintiff  might  be  obliged  to  make.  That  *the 
plaintiff,  in  confidence  that  the  premises  would  be  a  security 
to  him  for  his  engagement,  endorsed  a  promissory  note,  made 
by  Green,  the  16th  of  October,  1807,  for  500  dollars,  payable 
in  60  days,  for  the  purpose  of  raising  that  sum  to  complete 
the  purchase  by  Green,  who,  by  means  of  the  note,  procured 
the  money,  and  having  completed  the  purchase,  received  a 
deed  for  the  premises,  of  which  he  took  possession,  and 
about  the  1st  of  January,  1808,  and  before  the  note  became 
due,  died  intestate,  leaving  a  widow  and  children,  defendants. 
That  Green  made  no  provision  for  the  payment  of  the  note, 
and  his  personal  property  was  wholly  insufficient  to  pay  his 
debts.  That  the  note  fell  due  the  19th  of  January,  1808, 
and  the  suit  was  brought,  by  the  holder,  against  the  plaintiff, 
as  endorser,  and  a  judgment  recovered  far  598  dollars  and 
94  cents,  which  the  plaintiff  paid,  on  execution,  the  5th  of 
February,  1808.  Letters  of  administration  were  granted  to 
his  widow,  Margaret  Green,  defendant. 

The  bill  charged,  that  the  sum  of  500  dollars,  so  received 
by  the  intestate,  Green,  by  means  of  the  note  endorsed  by 

51 


October  is. 


r  * 


57  J 


57  CASES  IN  CHANCERY. 

1817.       the  plaintiff,  for  the  purpose  of  making  the  purchase,  gave 
•*^~^~^s  the  plaintiff  a  Ken,  for  the  amount,  on  the  premises  ;  and  thai 
M'KAY        Green,  in  his  lifetime,  and  the  defendants,  since  his  death, 
GREEN.       are  so  ^ar  trustees  of  the  property  for  the  benefit  of  the 
plaintiff.     The  bill  prayed,  that  the  premises  might  be  sold,  and 
the  plaintiff  paid  out  of  the  proceeds,  and  for  general  relief. 
The  defendants,  in  their  answer,  denied  any  knowledge  of 
the  note,  or  of  any  agreement  by  Green  that  the  premises 
were  to  be  held  as  security,  or  of  the  suit  against  the  plain- 
tiff.    They  admitted  that   Green  made   the   purchase,  and 
took  possession  of  the  property,  on  the  1st  of  May,  1807,  and 
that  the  personal  property  was  insufficient  to  pay  his  debts. 

Some  proof  was  taken  in  the  cause,  but  it  did  not  show 
that  the  plaintiff  endorsed  the  note  under  any  assurance, 
[  *  58  1  *at  the  time,  that  the  land  should  be  held  as  a  security,  but 
merely  that  the  intestate,, in  his  last  illness,  promised  to  give 
the  plaintiff  a  'bond  and  judgment  for  his  security.  The 
deed  to  Green  was  dated  the  1st  of  May,  1807,  and  ac- 
knowledged the  12th  of  December,  1807.  The  note  was 
dated  the  16th  of  October,  1807,  and  was  payable  in  three 
months.  Green  died  the  18th  of  January,  1808. 

»S7os5on,  for  the  plaintiff. 
Baldwin,  for  the  defendant. 

THE  CHANCELLOR.  The  plaintiff  endorsed  the  note  of 
the  intestate,  upon  his  personal  credit,  and  there  was  no 
promise,  at  the  time,  of  any  real  security,  nor  any  thing  in 
the  transaction  to  imply  one.  The  notion  that  the  plaintiff 
had  an  equitable  Ken  upon  the  land,  because  the  note  he 
endorsed  was  applied  in  part  payment  of  the  purchase  money, 
is  entirely  without  foundation.  Nor  is  the  bill  framed  for  an 
account  of  assets,  or  so  as  to  entitle  the  plaintiff  to  proceed, 
in  this  Court,  as  a  creditor.  The  personal  estate  is  the  first 
and  primary  fund  for  the  payment  of  debts,  and  the  plaintiff 
ought  to  have  resorted,  at  law,  to  that  fund.  He  can  only 
come  here  for  an  account  and  discovery  of  assets,  and  on  the 
ground  of  a  trust  in  the  executor  or  administrator  to  pay  debts. 
.  (3  Aik.  572.  1  Sch.  and  Lef.  262.)  The  bill  was  not  in- 
tended for  that  purpose,  but  only  to  enforce  a  sale  of  the 
land,  by  reason  of  the  supposed  lien.  I  doubt  whether  a 
creditor  ought  to  come  into  this  Court,  in  an  ordinary  case, 
and  without  some  special  cause,  to  collect  his  debt  from  an  ex- 
ecutor or  administrator.  It  would  seem  not  to  be  enough  to 
state  that  he  is  a  simple  contract  creditor,  for  this  would  invite 
all  suits  against  executors  in  this  Court.  The  ordinary  anil 
proper,  as  well  as  the  cheaper  and  easier  remedy,  is  at  law. 
52 


CASES  IN  CHANCERY.  * 

The  resort  here  is  only  in  special  cases.  In  Gilpin  v.  1817. 
*Southanpton,  (18  Ves.  469.)  Lord  Eld*n  said,  that  ever  -^^-*^- * 
since  he  had  known  the  Court,  suits  had  been  allowed  against  M-*KAY 
executors,  or,  rather,  by  executors  in  the  name  of  a  creditor, 
against  themselves.  The  reason  was,  that  as  executors  had 
vast  powers  of  preference  at  law,  the  Court  had  not  disap- 
proved of  their  coming,  in  the  shape  of  an  application  by  a 
creditor,  in  order  to  give  a  judgment  to  all  the  creditors,  and 
to  secure  a  distribution  of  the  assets,  without  preference  to 
any.  When  once  the  decree  was  made,  it  was  impossible  to 
permit  a  creditor  to  go  on  at  law.  But  as  considerable 
inconvenience  arose  from  this  practice,  Lord  Eldon  intro- 
duced the  rule,  that  where  the  answer  did  not  state  what  the 
assets  were,  the  executor  should  be  called  upon  to  state  them 
by  affidavit,  before  the  injunction  issued. 

I  am  not  sufficiently  informed,  or  prepared,  to  assume  the 
entire  and  exclusive  jurisdiction  of  suits  against  executors 
and  administrators,  merely  for  the  purpose  of  enforcing  a 
ratable  distribution  of  assets.  It  is,  indeed,  the  dictum  of 
Sir  James  Mansfield,  (1  Campb.  N.  P.  148.)  that  the  cred- 
itors of  a  deceased  insolvent  may  always  be  compelled, 
through  the  medium  of  a  Court  of  equity,  to  take  an  equal 
distribution  of  the  assets.  He  said  it  was  only  necessary  for 
a  friendly  bill  to  be  filed  against  the  executor  or  administrator 
to  account,  after  which  the  chancellor  would  enjoin  any  of 
the  creditors  from  proceeding  at  law.  This  opinion  came 
from  a  judge  of  very  high  authority,  and  who  had  great 
experience  in  chancery  practice ;  but  he  admitted,  that  the 
lawyers  in  the  Court  of  K.  B.  were  not  aware  of  this  rule. 
Without  having  formed  any  decided  opinion,  one  way  or  the 
other,  on  this  subject,  it  is  sufficient  to  observe,  in  this  case, 
that  the  bill  was  not  intended  or  adapted  for  any  such 
general  purpose ;  and  it  must  be  dismissed. 

Bill  dismissed. 

53 


60* 


CASES  IN  CHANCERY. 


1817. 
*~v~^. 

NlCOLL 
V. 

ROOSEVELT 


October  14 


61 


*NICOLL  and  others  against  E.  ROOSEVELT  and  others. 

Where  one  of  several  defendants  dies,  the  plaintiff  cannot  file  a  new) 
original  bill  against  the  representatives  of  the  deceased  party  and  the 
others,  but  a  bill  of  revivor  only  against  such  representatives. 

Even  if  he  might  elect  to  file  a  new  bill,  he  cannot  do  so  where  an 
answer  has  been  put  in  by  the  party,  since  deceased 

BILL  for  a  discovery  against  the  executors  of  Cornelius 
C.  Roosevelt,  and  Peter  R.  Ludlow  and  wife,  for  an  account 
of  moneys  arising  from  the  sale  of  parts  of  the  real  and 
personal  estate  of  Samuel  Nicoll,  deceased,  which  had 
come  into  the  hands  of  C.  C.  R.,  and  for  the  payment  of 
the  amount,  &c. 

Plea,  that  the  plaintiffs,  in  the  lifetime  of  C.  C.  Roosevelt, 
to  wit,  on  the  4th  of  April,  1812,  exhibited  their  bill  against 
him,  and  P.  R.  Ludlow  and  his  wife,  to  have  an  account  of 
the  same  matters  as  are  set  forth  in  the  present  bill,  and  for 
general  relief.  That  C.  C.  Roosevelt  put  in  his  separate 
answer  to  that  bill  on  the  27th  of  August,  1812,  which  was 
not  excepted  to  ;  and  afterwards  died,  having  made  his  will, 
and  appointing  the  defendants  his  executors.  That  the  said 
suit  is  still  pending  in  this  Court,  except  so  far  as  it  may 
have  abated  by  the  death  of  C.  C.  Roosevelt ;  and  that  the 
plaintiffs  ought  to  revive  it,  as  against  the  defendants,  his 
personal  representatives,  so  far  as  related  to  any  right  or 
claim  of  the  plaintiffs  against  him  at  the  time  of  his  death, 
whereby  the  answer  of  the  said  C.  C.  Roosevelt  would  form 
part  of  the  record,  and  the  defendants  have  the  benefit 
thereof,  in  their  defence,  as  his  personal  representatives; 
whereas  the  present  is  a  new  original  bill  of  the  plaintiffs, 
which  takes  no  notice  of  the  former  bill  and  answer,  &c., 
but  seeks  a  discovery  and  account  from  these  defendants,  as 
executors,  as  though  the  former  bill  had  not  *been  filed,  nor 
the  answer  of  the  said  C.  C.  Roosevelt  put  in  thereto. 
And  the  defendants,  insisting  on  their  plea  in  bar,  prayed 
judgment,  &c. 


J.  Emott,  for  the  plaintiffs. 

G.  Griffin,  for  the  defendants. 
463.    3  Afk.  486. 


He  cited  1   Veni.  308. 


THE  CHANCELLOR.  The  plea  ought  to  be  allowed ;  for, 
instead  of  an  original  bill,  there  ought,  in  this  case,  to  have 
been  a  bill  of  revivor  against  the  representatives  of  Roost' 
54 


CASES  IN  CHANCERY.  ( 

veil,  who  had   already  filed   his   answer,  of  the  benefit  of        i817. 
which  they  ought  not  to  be  deprived.     The  statute  (1  N.  R.  ^*-^-** 
L.  488.)  does  not  require  or  permit  the  suit  to  be  abated  in       CATLIN 
case  of  the  death  of  one  of  the  defendants.     Perhaps  the      HARNED. 
plaintiff  may,  in  certain  cases,  be  entitled  to  elect  between  a 
new  bill  and  a  bill  of  revivor,  according  to  the  dictum  in 
the  cases  referred  to ;  but  it  would  not  be  reasonable  in  this 
case,  after  the  defendants  had  answered. 

Leave  to  amend  the  bill,  on  payment  of  costs. 


CATLIN  against  HARNED  and  others. 

Where,  on  a  bill  to  foreclose  a  mortgage,  a  subsequent  mortgagee,  or 
judgment  creditor,  who  is  made  a  party  defendant,  answers  and  dis- 
claims, he  is  entitled  to  costs  against  the  plaintiff,  to  be  paid  out  of  the 
fund,  if  that  is  sufficient,  and  if  not,  to  be  paid  by  the  plaintiff;  he  not 
having  applied  to  such  defendant,  before  suit  brought,  to  release,  or 
otherwise  disclaim. 

BILL  to  foreclose  a  mortgage,  executed  by  J.  Harned  <  ktober  is. 
and  his  wife,  to  the  plaintiff.  The  mortgagors  answered, 
admitting  *the  facts,  and  consenting  to  a  foreclosure.  Two  [*6'J 
of  the  defendants,  who  had  obtained  judgments  against  /. 
Harned,  subsequent  to  the  plaintiff's  mortgage,  suffered  the 
bill  to  be  taken  against  them,  pro  confcsso.  J.  IV.,  a  sub- 
sequent mortgagee,  and  G.  C.,  a  subsequent  judgment  cred- 
itor, answered  separately,  admitting  the  facts  charged  in  the 
plaintiff's  bill,  and  disclaiming ;  and  the  only  question  was, 
whether  they  were  entitled,  on  theff  disclaimer,  to  costs 
against  the  plaintiff. 

Slosson,  for  the  plaintiff. 
C.  W.  Graham,  contra. 

THE  CHANCELLOR.  The  defendants  who  have  disclaimed 
are  entitled  to  costs  against  the  plaintiff,  to  be  paid  out  of 
the  fund,  if  sufficient,  to  satisfy  the  demand  of  the  plaintiff 
and  their  costs ;  and  if  not  sufficient,  then  to  be  paid  by  the 
plaintiff.  They  were  not  called  upon  nor  requested  to  dis- 
claim, by  release  or  otherwise,  before  suit  brought,  which 
application  to  them  would,  probably,  have  saved  the  necessity 

55 


62  CASES  IN  CHANCERY. 

1817.       of  making  them  defendants.     A  very  slight  refusal  or  neglect, 
^r~- v~^-s  on  the  part  of  these  defendants,  might  be  sufficient  to  deprive 
BKOWN       them  of  costs ;  but  without  fault,  and  even  ignorant,  as  the 
FICKETTS      judgment  creditor  may  be  supposed  to  be,  of  the  mortgage, 
they  ought  not  to  be  sent  out  of  Court  without  their  costs. 
But  the  allowance   of  costs  at  all  to   these   defendants,  is 
attended  with  some  difficulty,  if  those  costs  are  eventually 
to  fall  on  the  plaintiff;  for  he  was  under  the  necessity,  as  it 
is  generally  understood,  of  making  the  subsequent  encum- 
brancers parties.     In  Harikey  v.  JfaTson,  cited  by  Cooper,  in 
his  treatise  of  pleadings,  (p.  311.)  it   appears  that  a  sub- 
sequent mortgagee,  who  had  disclaimed,  was  denied  costs.     It 
is  a  question  on  which  different  opinions  may  be  entertained 
but  where  the  parties  stand  equally  fair,  in  every  respect,  I 
[  *  63  ]         think,  that  the  plaintiff,  *the  actor,  who  brings  the  other  into 
the  Court,  ought  to  pay  the  expense. 

Order  accordingly. 


BROWN  against  RICKETTS  and  others,  Executors. 

Publication  is  passed  in  a  cause,  by  filing  a  certificate  of  the  clerk  of  thu 
entry  and  expiration  of  the  previous  rules,  with  the  register  or  assist- 
ant register,  and  entering  a  rule  with  him  to  pass  publication.  Either 
party  who  has  examined  witnesses  may  give  rules  for  publication,  but 
the  rule  for  publication  can  be  entered  only  by  the  party  who  has 
given  the  previous  rules. 

The  defendant  cannot  pass  publication  on  the  plaintiff's  rules,  nor  vice 
versa. 

Get  btr  H  THE  defendants'  solicitor  entered  a  rule  with  the  clerk  on 
the  22d  of  March,  1817,  giving  three  weeks  to  the  plaintiff 
to  produce  witnesses ;  and  on  the  12th  of  April,  1817,  he 
entered  another  rule,  for  the  plaintiff  to  show  cause  why 
publication  should  not  pass  in  three  weeks.  After  the  expi- 
ration of  the  time,  he  took  no  further  step  in  the  cause,  and 
did  not  pass  publication  ;  which  is  done  by  procuring  the 
clerk's  certificate  of  the  entry  and  expiration  of  those  rules, 
and  filing  it,  and  entering  the  rule  for  publication  with  the 
register. 

The  plaintiff's  solicitor  then  entered  the  rule  himself  with 
the  register,  to  pass  publication,  and  set  down  the  cause; 
and  now  moved  to  bring  on  the  cause  for  hearing. 

The  counsel  for  the  defendants  objected  that  the  cause 
was  not  ready  for  hearing,  and  that  publication  has  not  duly 
56 


CASES  IN  CHANCERY.  63 

passed.     He  contended,  that  the  opposite  solicitor  could  not        1817. 
do  it  upon  the  defendants'  rules,  and  could  only  pass  publi-  ^^^^^^^ 
cation  upon  his  own  rules.     As  the  cause  now  stood,  the  de-       BROWN 
fendants'  solicitor  might  go  on  and  examine  ^witnesses,  and     RICKETTS 
he  might  have  good  reasons  for  not  passing  publication.  f  *  64  1 

Burr,  for  the  plaintiff. 
Riggs,  contra. 

THE  CHANCELLOR  was  of  opinion  that  the  objection  was 
well  taken,  and  that  the  cause  was,  consequently,  not  ready 
for  hearing.  In  one  of  Lord  Coventry's  rules  (Beames's  Or- 
ders in  Chancery,  p.  96.)  it  was  declared  to  be  the  course  of 
the  Court  to  permit  the  .party  to  examine  witnesses  until 
publication.  There  is  no  doubt  that  either  side,  who  has  ex- 
amined, may  give  rules  for  publication,  but  the  defendant 
cannot  give  them,  until  the  plaintiff  has  been  in  default. 
(Newland's  Practice,  p.  143.)  Publication  cannot  pass  but 
by  rule  to  be  entered  with  the  register  or  assistant  register. 
This  has  been  frequently  declared  by  orders  in  the  English 
chancery  to  be  the  practice;  (Beames's  Orders,  p.  319.  333. 
336.)  and  it  is  the  practice  here.  The  passing  publication 
being  founded  on  the  previous  rules  for  publication,  it ,  can 
only  be  done  by  the  party  procuring  the  rules.  They  are 
connected  parts  of  one  act,  and  it  would  be  unfit  and  unpre- 
cedented for  the  defendant  to  pass  publication  upon  the  plain- 
tiff's rules,  when  he  is  only  entitled  to  proceed  with  his  rules, 
on  the  plaintiff's  default. 

Motion  denied. 

VOT    HI  8  57 


CASES  IN  CHANCERY. 


October  15 


1817. 

MESSONNIER    *WlLLIAMS  OgaiHSt  WlLKINS  and  Others,  ExCCUtOFS  ol 
KALMAN.  BRUSH. 

A  plaintiff,  suing  in  forma  pauperis,  and  recovering  a  legacy  against  ex- 
ecutors, is  entitled  only  to  the  actual  costs  or  expenses  of  the  suit,  to 
be  paid  out  of  the  assets. 

It  rests  in  the  discretion  of  the  Court  to  order  pauper  or  dives  costs,  ac- 
cording to  the  circumstances  of  the  case. 

THE  plaintiff  sued  in  forma  pauperis,  and  recovered  a 
legacy  of  200  dollars,  with  interest.  The  executors  had  re- 
fused to  pay  the  plaintiff,  because  the  will  directed  the  money  to 
be  put  out  at  the  discretion  of  the  executors,  and  they  ap- 
prehended that  the  plaintiff,  who  was  born  a  slave,  and  eman- 
cipated by  the  will,  would,  waste  the  money. 

The  question  was,  whether  the  plaintiff  was  entitled  to  costs. 

THE  CHANCELLOR  said  the  cases  had  been  reviewed  in  Rat- 
tray  v.  George,  (16  f^esey,  232.)  and  there  was  found  to  be  a 
great  variety  of  contradictory  decisions  upon  the  subjects  of 
pauper  costs,  and  the  result  was  that  the  Court  had  a  discre- 
tion in  each  case.  Here  was  no  very  unreasonable  delay  in 
the  executors,  and  the  plaintiffs  ought  not  to  recover  dices 
costs,  but  only  the  actual  expenses  of  the  suit,  to  be  paid  by 
the  executors  out  of  the  assets. 

Order  accordingly. 


[  *  66]  *MESSONNIER  against  KAUMAN. 

[Followed,  3  Johns.  Ch.  351.] 

An  appeal  is  only  a  stpy  of  the  proceedings  in  the  first  instance,  and  the 
party  in  whose  favor  the  decree  is,  may,  with  have  of  the  Court,  pro- 
ceed, notwithstanding  the  appeal ;  and,  on  motion  for  that  purpose, 
the  Court,  after  an  appeal  filed,  ordered  a  reference  to  a  master  to 
ascertain  the  precise  sum  due  by  the  defendant,  with  interest ;  and 
that  the  defendant  bring  the  amount  into  Court  within  30  days  after 
confirmation  of  the  report,  or  that  he  gives  security  to  be  approved 
of  by  a  master,  to  perform  the  decree,  or  such  decree  as  might  be 
awarded  against  him  on  the  appea  1,  or  that  execution  issue,  notwith- 
standing the  appeal. 

Octobet  16.  AN  appeal  to  the  Court  for  the  Trial  of  Impeachments  and 
the  Correction  of  Errors,  from  the  decree  lately  pronounced 
in  this  case,  (a)  having  been  filed, 


53 


(a)  Vide  S.  C.  ante,  page  3. 


CASES  IN  CHANCERY.  (JO 

T.  A.  Emmet,  for  the  plaintiff,  now  moved  for  leave  to        1817. 
complete  the  decree,  by  a  reference  to  a  master  to  ascertain   ^*-^~^s 
the  precise  sum  due,  by  computing  the  interest  on  the  amount    MESSO.NMI  K 
decreed  to  be  paid;  and  that  the  defendant  be  directed  to 
bring  the  sum  reported  into  Court,  within  30  days  from  the 
confirmation  of  the  report,  to  be  invested  in  public  stock  for 
the  benefit  of  whom  it  may  eventually  concern;  or  that  the 
defendant,  within  that  time,  give  security,  to  be  approved  by 
a  master,  to  perform  the  decree  aforesaid,  or  the  decree  that 
shall  be  awarded  against  the  defendant  upon  appeal,  or  that 
execution  issue  notwithstanding  the  appeal. 

flan'so??,  contra. 

THE  CHANCELLOR.  It  is  very  just  and  reasonable  that  the 
motion  should  be  granted.  The  decree,  in  this  case,  is  for  a 
large  sum  of  money  due  to  the  plaintiff;  and  as  the  defend- 
ant is  not  held  to  bail  in  this  Court,  and  as  the  decree  is  not 
like  a  judgment  at  law,  a  Hen  on  hand  until  *seizure,  it  is  [  *  67  ] 
necessary,  and  is  loudly  demanded  by  justice,  that  the  plain- 
tiff should  have  some  security  for  his  demand,  pending 
the  appeal.  It  appeared,  from  the  pleadings  and  proofs,  that 
the  defendant  was  himself  a  foreigner ;  a  more  reasonable 
case  for  security  cannot  well  be  conceived.  There  is  nothing, 
at  present,  to  hinder  the  defendant  from  withdrawing  himself 
and  his  property  from  the  reach  of  the  process  of  the  Court. 
If  the  Court  has  any  power,  at  all,  in  the  case,  it  is  indispen- 
sable that  it  should  now  exercise  it.  The  case  is  within  the 
reason  of  the  statute,  which  requires  security  on  writs  of  error 
from  judgments  in  personal  actions  at  law,  in  order  to  render 
the  writ  of  error  a  supersedeas  to  an  execution.  It  is  proba- 
ble that  this  cause  cannot  be  brought  to  a  decision  in  the 
Court  of  Appeals  during  the  next  session,  and  the  plaintiff's 
debt  may  be  exposed  to  much  jeopardy,  and,  probably,  to 
total  loss,  by  the  delay.  If,  after  great,  persevering  and  ex- 
pensive efforts  to  obtain  justice,  a  decree  can  be  baffled,  and 
the  defendant  escape,  in  this  way,  it  may  be  truly  said  of  a 
successful  plaintiff,  Tu  victrix  ploras. 

In  England,  an  appeal  to  the  House  of  Lords  is  no  stay  of 
proceedings  in  chancery,  or  of  execution,  without  the  special 
order  of  the  chancellor ;  and  such  an  order,  we  may  be  as- 
sured, would  never  be  granted  in  a  case  like  this,  until  the 
sum  recovered  was  placed  in  a  state  of  security.  Thus,  in 
Willan  v.  Wittan,  (16  Vesey,  216.)  on  motion  to  stay  pro- 
ceedings until  the  appeal  should  be  heard,  the  party  offered 
to  bring  the  money  into  Court,  to  be  laid  out  for  the  party 
who  should  be  ultimately  entitled ;  and  the  same  course  had 
been  pursued  in  other  cases.  In  Monkhouse  v.  Corporation 

59 


67  CASES  LN  CHANCERY. 

1817.       °f  Bedford,  (17  Vesey,  380.)  on  a  decree  by  a  mortgagee, 

v^^^v^— ^_x  the  Court  refused  to  suspend  execution  pending  an  appeal. 

MESSONNIEK    unless  the  money  was  brought  into  Court,  and  the  interest 

KAUMAN       an(*  costs  Pa*^  to  tne  plaintiff,  on  his  undertaking  to  refund, 

if  the  decree  should  be  reversed.     So,  also,  in  the  case  of 

[  *  68  ]  Way  \.  Foy,  (18  Vesey,  452.)  the  chancellor  ^allowed  the 
plaintiff  to  take  a  legacy  decreed  to  him,  notwithstanding  the 
defendant  had  appealed,  on  his  giving  approved  security  to 
refund,  if  the  decree  should  be  reversed. 

There  is  no  doubt,  therefore,  that  the  effect  of  such  a 
motion  as  the  present  one  would  be  a  matter  of  course  in  the 
English  chancery,  before  the  appeal  could  be  allowed  to  op 
erate  as  a  supcrsedeas.  I  see  no  reason,  nor  any  objection, 
against  the  possession  and  exercise  of  equal  power  in  this 
Court.  In  Green  \.  Winter,  (1  Johns.  Ch.  Rep.  77.)  the 
question  was  discussed  and  considered ;  and  I  concluded 
that  it  rested  in  the  discretion  of  this  Court  to  determine 
when,  and  how  far,  a  party  might  have  liberty  to  proceed, 
notwithstanding  an  appeal.  The  same  point  was  raised,  and 
the  same  conclusion  drawn,  in  Bradwell  v.  Weeks.  (1  Johns. 
Ch.  Rep.  325.)  I  observed,  in  those  cases,  that  it  was  well 
understood  and  established  in  the  Courts  at  law,  (2  Term 
Rep.  78  ;  4  Term  Rep.  436  ;  and  the  cases  cited  in  the  notes,) 
that  it  rested  in  the  discretion  of  those  Courts  to  determine 
when  a  writ  of  error  was  a  supersedeas.  The  statute  requiring 
bail  on  writs  of  error  (which  was  copied  from  the  statutes  of 
3  Jac.  I.  and  16  and  17  Ch.  II.)  only  went  to  declare,  that 
without  bail  in  the  given  cases,  a  writ  of  error  should  not  be 
a  supersedeas,  and  it  left  the  discretion  of  the  Courts,  as  to 
when  error  should  be  a  supersedeas,  unimpaired 

By  an  order  of  the  English  House  of  Lords,  of  1807,  (15 
Vesey,  184.)  it  was  declared  that,  "for  a  very  long  course 
of  years,"  Courts  of  equity  had  been  in  the  habitual  practice 
of  proceeding,  notwithstanding  appeals  ;  and  that,  "  according 
to  the  present  practice  of  the  House  of  Lords,"  appeals  do  not 
stay  proceedings,  without  an  order  of  the  Court  of  Equity  for 
that  purpose,  or  a  special  order  of  the  House  of  Lords.  The 
resolution  of  the  House  of  Lords  further  adds,  that  "  such  a 
practice  cannot  be  departed  from  without  introducing  conse- 

[  *  69  quences  the  most  oppressive  to  *the  suitors  in  Courts  of  equity, 

and  the  utmost  inconvenience  in  the  administration  of  justice 
in  such  Courts." 

This  practice  of  the  House  of  Lords  was  declared  to  be  found- 
ed on  a  very  long  course  of  years ;  and,  indeed,  as  early  as 
1697,  we  find,  in  the  case  of  Homer  v.  Popham,  (Code's  P.  C. 
1 .)  an  instance  in  which  the  Court  of  Chancery  proceeded  in 
a  cause  pending  an  appeal,  and  this  in  stance  was,  in  that  case, 
made  known  to  the  House  of  Lords.  In  February,  1 786,  the 
60 


CASES  IN  CHANCERY.  69 

Court  of  this  state,  for  the  Trial  of  Impeachments,  and  the  Cor-        1817. 
rection  of  Errors,  declared,  by  a  general  rule.  "  that  on  appeals,    ^^x-xx-^x^ 
the  practice  of  the  Court  shall  be  conformable  to  that  of  the    PENDLETOH 
House  of  Lords  in  England,  when  sitting  as  a  Court  of  appeal, 
until  further  order." 

Motion  granted. 


N.  PENDLETON  against  EATON  and  others. 

Where  both  parties  are  equally  innocent,  and  both  are  endeavoring  to 
avoid  a  loss  caused  by  another,  costs  will  not  be  awarded  to  either 
party  as  against  the  other. 

THE  bill  was  filed  in  October,  1810,  by  the  plaintiff,  a  mort-     October  a*. 
gagee,  to  compel  the  mortgagors  to  come  to  an  account,  and 
pay  the  plaintiff  the  amount  due  on  the  mortgage,  and  redeem 
the  same,  or  be  foreclosed  of  all  equity  of  redemption. 

The  mortgage,  dated  the  17th  of  February,  1804,  for  a 
tract  of  land  in  Greene  county,  was  executed  by  Amos  Eaton 
and  Abel  Eaton,  defendants,  to  the  plaintiff,  to  secure  the 
payment  of  13,500  dollars,  being  the  amount  of  the  purchase 
money  of  the  same  land  conveyed  by  the  plaintiff  to  them, 
and  payable  in  three  equal  instalments,  at  *five,  six,  and  seven  [  *  70  ] 
years ;  and  as  further  security,  they  executed  a  judgment  bond 
to  the  plaintiff,  on  which  judgment  was  entered  up  the  18th 
of  February,  1814,  and  Abel  E.  also,  as  additional  security, 
executed  a  mortgage  to  the  plaintiff  on  his  farm  in  Columbia 
county,  but  which  was  afterwards  released,  on  receiving  the 
interest  due  to  the  1st  of  May,  1806,  and  the  bond  and  mort- 
gage of  M.  Dorr,  the  purchaser  of  the  farm.  The  bill  stated 
that  13,412  dollars  now  remained  due,  for  which  the  mort- 
gaged premises  were  a  slender  security  ;  that  the  mortgagees 
neglected  to  make  payment,  but  combining  with  one  M. 
Eaton,  J.  Beach,  and  others,  they  set  up  certain  pretended 
releases  of  parts  of  the  premises,  and  receipts  of  the  plaintiff, 
which  the  plaintiff  alleged  were  forged,  and  which  were  par- 
ticularly described  ;  and  that,  under  color  of  these  releases, 
A.  E.  had  sold  and  mortgaged  to  the  defendants  various 
parts  of  the  premises. 

In  June,  1811,  William  Edgar,  a  defendant,  in  his  answer, 
stated  that  he  lent  Amos  Eaton,  in  January,  1810,  three 
thousand  dollars,  for  which  he  took  his  bond,  and  a  mortgage 
on  part  of  the  premises  mortgaged  to  the  plaintiff,  on  the 

61 


70  CASES  IN  CHANCERY. 

1817.       advice  of  counsel  that  the  land  was  unenci  mbered  ;  that  hr 

\^r~^s-*+~s  was  entirely  ignorant  of  the  transaction  stated  by  the  plain- 

PKNDLETON     tiff  in  his  bill,  and  insisted  on  the  lien  on  that  part  of  the 

EATON        premises  mortgaged  to  him.     The  cause  was  at  issue,  as  tc 

£%<??-,  in  April,  1812. 

In  November,  1811,  Edgar  filed  a  C7'os.?  bill,  stating  his 
answer  to  the  original  bill,  and  that  the  plaintiff  had  issued 
an  execution  on  his  judgment,  and  levied  on  the  mortgaged 
premises ;  that  the  release,  from  Pendleton  to  Amos  Eaton, 
of  all  claims  under  the  mortgaged  premises,  was  dated  the 
2d  of  May,  1808,  and  recorded,  &c. ;  and  praying,  among 
other  things,  that  the  residue  of  the  land  not  mortgaged  to 
the  plaintiff  E.  and  all  the  estate  of  the  Eatons,  might  be 
sold,  and  first  applied,  &c. ;  and  that  the  plaintiff  E.  might 
|  ?1  ]  be  permitted  to  redeem  the  first  mortgage,  *if  he  thought  fit, 
and  that  an  injunction  issue  to  stay  all  proceedings  on  the 
execution,  &c. 

in  the  answer  to  the  cross  bill,  the  defendant,  P.,  set  forth 
his  mortgage,  judgment,  &c. ;  and  particularly  described  the 
forgery  of  the  three  releases,  for  nearly  the  whole  of  the 
mortgaged  premises ;  and  stated  that  Amos  Eaton  had  beer 
convicted  of  the  forgery  of  one  of  the  releases ;  that  the 
defendant  had  offered  to  compromise  with  the  plaintiff  E. 
on  his  losing  one  half  of  his  debt,  which  the  plaintiff  declined, 
&c. ;  that  he  submitted  to  have  his  mortgage  redeemed  by 
the  plaintiff,  &c. 

This  answer  being  put  at  issue,  voluminous  evidence  was 
taken  on  the  part  of  the  defendant. 

Both  causes  came  on  to  be  heard,  together,  in  June  last, 
and  a  decree  was  made,  declaring  the  release  in  question 
false,  fraudulent,  and  void ;  that  the  defendant  Edgar  elect, 
in  twenty  days,  to  pay  the  debt,  and  take  an  assignment  of 
the  mortgage,  securities,  &c.,  or  that  he*be  foreclosed  of  all 
equity  of  redemption,  &c.  Edgar  made  no  election,  and 
the  question  reserved,  and  now  submitted  to  the  Court,  was, 
who  should  pay  the  costs  of  either  or  of  both  suits. 

Pendleton,  in  proper  person. 
Baldwin,  for  Edgar. 

THE  CHANCELLOR,  after  disposing  of  the  question  of  costs 
under  a  particular  rule,  proceeded  to  consider  the  question 
as  to  the  costs  of  the  suits  at  large,  as  follows : — 

Edgar  was  brought  into  Court  in  the  original  suit,  an  in- 
nocent and  bona  fide  m  t>rtgagee.  He  had  no  concern  with 
a  greater  portion  of  the  matter  in  the  bill,  in  which  nineteen 
other  defendants  were  charged.  He  answered,  by  setung 
62 


CASES  IN  CHANCERY. 

up  his  mortgage  fairly  taken,  and  denying  all  knowledge  of  1817. 
Any  fraud  in  Amos  Eaton,  in  procuring  the  releases  which  S^-N^-H*^ 
*appeared  upon  record,  and  which  showed  the  land  to  be  PENDLETON 
free  from  encumbrance  when  he  took  his  mortgage.  There  EATOH 
can  be  no  just  ground  for  charging  Edgar  with  costs  in  the 
original  suit.  He  has  done  nothing  which  he  had  not  a  right 
to  do.  But  he  filed  a  cross  bill ;  and  under  the  circumstances 
of  the  case,  he  was  justified  in  doing  it.  After  his  answer  to 
fhe  original  bill,  Pendhton  should  either  have  dismissed  it, 
as  to  him,  or  gone  on  to  establish  his  allegations,  and  to  make 
manifest  his  prior  and  better  title.  Instead  of  doing  so,  he 
resorted  to  his  judgment  at  law,  and  proceeded  to  sell  the 
very  land  covered  by  the  conflicting  mortgages.  By  this 
means,  he  drove  Edgar,  by  necessity,  to  resort  to  a  cross  bill, 
and  to  stay  the  sale  by  injunction,  until  the  merits  of  the 
original  suit  had  been  discussed  and  settled.  That  cross  bill 
was  not  properly  a  bill  to  redeem.  That  was  not  its  character 
or  object.  It  was  to  stay  the  execution  at  law,  and  to  insist. 
on  the  validity  of  his  claim  under  Edgar's  mortgage.  The 
great  prolixity  and  expense  of  the  answer  to  the  cross  bill, 
and  of  the  proofs  taken  in  the  cross  cause,  were  matters  of 
the  defendant's  own  seeking  in  that  cause.  The  whole  suit 
was  forced  upon  Edgar,  by  the  act  of  the  original  plaintiff, 
and  Edgar  ought  not  to  be  charged  with  the  expenses  of  it. 
Suppose  the  original  plaintiff  had  gone  on  to  proof  and  hear- 
ing, in  the  original  cause,  and  obtained  the  decree  which  he 
finally  obtained,  there  would  have  been  no  equity  in  con- 
demning Edgar  in  the  costs  of  the  suit.  He  was  brought 
into  Court  innocently,  and  he  had  a  right  to  stand  upon  his 
mortgage,  until  the  falsity  of  the  releases  was  made  out. 
The  cross  bill  does  not  alter  the  equity  of  the  question  of 
costs,  as  it  would  have  stood,  if  there  had  been  no  cross  bill ; 
for  it  was  the  act  of  the  original  plaintiff  in  quitting  his  suit 
after  the  defendant's  answer,  and  resorting  to  his  execution  at. 
law,  that  rendered  Edgar's  bill  necessary. 

Nor  do  I  think  that  the  offer  mentioned  in  the  answer 
*to  the  cross  bill  alters  the  case.  Edgar  was  bound  to  [  *  73  J 
accept  of  a  composition,  and  leave  the  question  of  title  and 
right  between  them  undecided.  That  was  a  matter  resting 
in  his  discretion,  and  cannot  enter  into  the  consideration  of 
the  case,  as  it  stood  upon  actual  litigation ;  and,  besides,  the 
answer  being  put  in  issue,  there  is  no  proof  which  I  have 
seen  of  this  offer. 

Upon  the  whole,  both  parties  are  equally  innocent,  and 
have  been  equally  struggling  to  avoid  a  loss ;  and  I  cannot, 
according  to  the  course  and  practice  of  the  Court,  punish 
either  party  with  costs,  as  against  the  other. 

There  is  another  fact  in  this  case,  which  is  import?  nt,  as  to 

63 


73  CASES  IN  CHANCERY. 

1817.       tne  question  of  costs.     The  costs  of  the  original  plaintiff 

v^^-x,— ^x'  ought  to  be  charged  upon  the  fund  which  was  in  contest. 

STACKHOUSE   That  is  the  proper  subject  of  the  charge ;  and  I  have  no 

HALSEY       evidence  that  it  is  not  fully  adequate  to  satisfy  the  plaintiff's 

debt,  interest,  and  costs.     The  plaintiff  elects  to  foreclose 

the  equity  of  redemption,  by  which  he  takes  the  subject  to 

himself,  by  a  strict  and  technical  foreclosure,  instead  of  selling 

it  under  the  direction  of  the  Court.     I  have  no  ground,  then, 

in 'the  absence  of  positive  proof,  for  any  other  presumption 

than  that  the  land  is  sufficient  for  all  the  purposes  for  which 

it  ought  to  be  charged. 

Ordered,  that  neither  party  in  either  suit  have  costs,  as 
against  each  other. 


*STACKHOUSE  against  HALSEY. 

Where  the  statute  directs  the  advertisement  for  the  sale  of  mortgaged 
premises  to  be  published  "  once  a  week  for  six  successive  months," 
lunar,  not  calendar  months,  are  intended. 

BILL  to  set  aside  a  sale  of  mortgaged  premises,  under 
a  power  contained  in  the  mortgage. 

The  cause  was  submitted  on  the  bill  and  answer. 

Wyman,  for  the  plaintiff. 
Maxwell,  for  the  defendant. 

The  single  point  was,  whether  the  words  of  the  statute 
directing  the  advertisement  of  the  sale  "  once  a  week  for  six 
successive  months,"  meant  calendar  or  lunar  months. 

THE  CHANCELLOR  ruled  that  lunar  months  were  under- 
stood here,  and  in  all  cases,  in  statutes,  where  months  are 
mentioned  ;  and  there  is  nothing  in  particular  to  indicate  that 
calendar  months  were  intended,  in  contradistinction  to  the 
other.  The  cases  of  Lacon  v.  Hooper,  (6  Term  Rep.  224.) 
and  of  Talbot  v.  Linfield,  (1  Wm.  Black  stone' s  Rep.  450.) 
were  referred  to.  (a) 

(a)  Vide  Lor'mg  v.  Hailing,  15  Johns.  Rep.  119.  S.  P.  Leffingwell  v.  Pier 
point,  1  Johns.  Cases,  100.  Jackson  v.  Clark,  7  Johns.  Rep.  217. 

64 


CASES  IN  CHANCERY.  *75 

1817. 

MATTOCKS 

y  f 

*MATTOCKS  against  TREMAIN  and  others.  TREUAIH 

To  entitle  a  party  to  a  writ  of  ne  exeat,  his  debt  or  demand  must  be 
satisfactorily  ascertained ;  a  mere  declaration  of  belief  of  the  existence 
and  amount  of  his  claim,  is  net  sufficient ;  there  must  also  be  a  positive 
affidavit  of  a  threat  or  purpose  of  the  party  against  whom  the  writ  is 
prayed,  to  go  abroad ;  and  that  the  debt  would  be  lost,  or  at  least  in 
danger,  by  his  departure  from  the  state. 

It  seems  that  a  writ  of  ne  exeat  will  not  be  granted,  on  petition  and  mo- 
tion only,  without  a  bill  previously  filed. 

THE  petition  of  the  defendant  Tremain  stated,  that  he  October  2i 
was  payee  of  a  note  of  the  plaintiff's  to  him,  for  2,272  dol- 
lars, and  endorsed  it  to  the  other  two  defendants,  who 
thereupon  arrested  the  plaintiff,  at  law,  but  did  not  hold  him 
to  bail,  owing  to  the  representations  of  the  petitioner  of  his 
solvency,  &c.  That  the  plaintiff  filed  his  bill  against  all  the 
defendants,  for  an  injunction  to  stay  the  suit  at  law,  on  the 
ground  that  he  had  never  given  such  note,  and  the  injunction 
was  granted.  That  the  petitioner  is  informed  and  believes, 
that  the  plaintiff  is  selling  off  his  property,  and  is  about  to 
remove  out  of  the  state.  That  by  the  said  bill,  the  plaintiff 
at  law  seeks  a  discovery,  and  account  of  the  petitioner.  That 
the  note  was  given  on  a  partnership  account,  and  the  plaintiff 
owes  the  petitioner  2,000  dollars  on  the  partnership  accounts, 
beyond  the  amount  of  the  note,  and  for  which  claim  he  has 
no  redress  at  law,  the  same  not  being  as  yet  liquidated. 

Prayer  for  a  writ  of  ne  exeat. 

The  petition  was  sworn  to  on  the  21st  of  October,  1807. 

G.  Caines,  for  the  defendant,  moved  for  the  writ  of  ne 
exeat. 

THE  CHANCELLOR.     There  are  difficulties   arising  upon 
this  petition. 

1.  In  the  first  place,  the  demand  of  the  petitioner  is  not 
*sufficiently  ascertained.  The  old  rule  was,  that  stating  the  [  *  76  J 
belief  of  the  balance  of  an  account  was  sufficient ;  but  Lord 
Eldon,  in  Amsinclc  v.  Barklay,  (8  Vesey,  597.)  said  he  should, 
in  future,  pause  upon  such  a  general  statement,  unless  facts 
or  declarations,  as  the  ground  of  that  belief,  were  given. 
I  do  not  say  that  such  a  dictum  is  sufficient  to  form  a  new 
rule ;  but  the  nature  of  this  case  requires  something  more 
than  a  general  declaration,  that  the  plaintiff  owes  him 
•2,000  dollars  beyond  the  amount  of  the  note,  which  he 
admits  was  given  on  a  partnership  transaction.  Why  should 

VOL.  III.  9  65 


76  CASES  IN  CHANCERY. 


1817.  *ne  no'e  be  given  f°r  Part  only  of  the  demaid?  It  is  evi« 
^^^-v^^x  dence  that  no  more  is  admitted  by  the  plaintiff  to  be  due, 
MATTOCKS  and  it  is  so  far  evidence  of  a  settlement  ;  and  the  bill  filed  by 
tne  1^°^  claims  a  balance  due  him.  In  such  a  pecu- 
liar case,  there  must  be  something  more  than  the  general 
declaration  of  belief. 

2.  The  evidence  is  not  sufficient  of  the  plaintiff's  intention 
to  go  abroad.  It  is  a  belief  derived  merely  from  information  ; 
and  this  seems  to  refer  only  to  the  fact  that  the  plaintiff  is 
disposing  of  his  property.  There  ought  to  be  a  positive 
affidavit  of  a  threat  or  purpose  to  go  abroad.  (.Efc/ies  v. 
Lance,  1  Vesey,  417.  Oldham  v.  Oldham,  7  Vesey,  410. 
Jones  v.  Alephsin,  16  Vesey,  470.  Percy  v.  Powell,  cited  in 
Beams'  's  "  View  of  the  Writ  of  Ne  Exeat,"  p.  25.  MS.  case 
of  Mr.  Bell.}  So,  also,  the  affidavit  ought  to  have  stated, 
that  the  debt  would,  at  least,  be  endangered  by  the  departure 
of  the  plaintiff.  (7  Vesey,  417.  8  Vesey,  33.) 

There  are  several  facts  set  forth  in  the  petition  which 
have  nothing  to  do  with  the  case.  The  plaintiff  is  sued,  at 
law,  by  the  other  two  defendants  ;  and  with  that  fact,  or  the 
demand  upon  the  note,  I  have,  at  present,  no  concern.  The 
application  is  only  on  behalf  of  the  petitioner,  and  he  has  no 
other  ground  for  the  writ  than  the  balance  due  to  him  on  the 
account,  and  his  affidavit  is  too  defective,  for  the  reasons 
I  have  stated. 

|"#77"j  *3.  It  may,  also,  be  a  question  whether   the  petitioner 

ought  not  to  have  filed  his  bill,  to  entitle  him  to  the  writ 
The  settled  rule  is,  that  the  writ  cannot  be  granted  on  pe- 
tition and  motion,  without  a  bill  previously  filed.  (Ex  parte 
Bruncker,  3  P.  Wms.  312.)  Possibly,  the  defendant  may 
move  for  the  writ  upon  the  plaintiff's  bill,  seeing  his  demand 
may  be  liquidated,  settled,  and  recovered  under  the  present 
bill.  The  difficulty,  however,  is,  that  the  plaintiff  may 
abandon,  or  dismiss  his  bill,  on  payment  of  costs  ;  and  the 
writ  should  not  rest  upon  a  bill  which  the  party  suing  out 
the  writ  cannot  control. 

Motion  denied. 
66 


CASES  IN  CHANCERY.  71 

1817. 

METHO.  Kris 


The  Trustees  of  the  METHODIST  EPISCOPAL  CHURCH 
and  others  against  JOHN  D.  JAQUES  and  others. 

o 

[Reversed,  17  Johns.  548.    Criticised,  22  N.  Y.  240.    Denied,  2  MacArthur  (U.  S.;  290. 
Reviewed,  &4  N.  C.  070.J 

Where  the  husband  is  permitted,  by  the  wife,  to  have  the  management 
of  her  separate  property,  secured  to  her  by  a  marriage  settlement,  to 
receive  rents,  &c.,  very  strict  proof  of  his  having  paid  to,  and  settled 
with  her,  during  her  lifetime,  for  the  sums  received,  is  not  required ; 
but,  from  the  confidential  nature  of  the  connection,  the  most  favorable 
presumptions  are  indulged  towards  him.  He  cannot,  however,  claim 
money  received  by  him  for  a  judgment  debt  due  to  the  wife,  on  the 
ground  of  the  mere  parol  declarations  of  the  wife,  contrary  to  the 
terms  of  settlement. 

A  feint  covert,  with  respect  to  her  separate  property,  is  to  be  considered 
as  a  feme  sole,  to  the  extent  only  of  the  power  given  to  her  by  the 
marriage  settlement.  Her  power  of  disposition  is  not  absolute,  but 
sub  modo,  to  be  exercised  according  to  the  mode  prescribed  in  the 
deed  or  will  under  which  she  becomes  entitled  to  the  property. 
Therefore, 

If  she  has  a  power  of  appointment,  by  will,  she  cannot  appoint  by  deed; 
or  when  she  is  empowered  to  appoint  by  deed,  the  giving  a  bond,  or 
note,  or  parol  promise,  without  reference  to  the  property,  or  making 
a  parol  gift  of  it,  is  not  such  an  appointment. 

So,  when  it  is  said  in  the  settlement,  that  she  is  to  receive  from  the 
trustee  the  income  of  her  property,  as  it  may,  from  time  to  time,  be- 
come due,  she  has  no  power,  by  anticipation,^  dispose,  at  once,  of  all 
that  income. 

*No  exception  can  be  taken  to  a  report  of  a  master,  unless  the  objection  *   IS  ] 

was  made  to  him  previous  to  his  signing  his  report. 

A  party,  in  an  account  before  a  master,  under  the  head  of  general  ex- 
penses, is  not  to  be  allowed  any  thing,  without  specifying  particulars. 

Where  one  party  produces  a  paper  to  charge  the  other,  the  opposite 
party  may  use  it  in  his  discharge  ;  but  it  does  not  follow  that  each 
party  is  entitled  to  the  same  credit. 

Where  the  discharges  are  inaccurate  in  some  instances,  and  are  destitute 
of  precision  and  certainty,  as  to  place  and  circumstance,  the  whole 
may  be  rejected. 

Costs  on  exceptions  to  a  master's  report  are  allowed  to  each  party,  on 
the  exceptions  in  which  they  have  each,  respectively,  prevailed. 

The  mistake  of  the  master  is  not  like  the  error  of  a  judge,  and  is  no  rule 
as  to  costs. 

THIS  cause  was  brought  to  a  hearing,  on  the  pleadings  October  i,z. 
and  proofs,  in  June,  1815,  (Vide  S.  C.,  vol.  1.  p.  5.  and  p.  %n£b£'n 
450.)  The  decree  of  the  Court,  the  27th  of  June,  1815, 
settled  the  principles  on  which  an  account  was  to  be  taken 
between  the  parties ;  and  an  order  of  reference  was,  there- 
upon, made  to  a  master,  to  take  and  state  the  account 
according  to  the  directions  there  given.  It  being  subse- 
quently discovered  that  some  of  the  property  advertised  for 
sale,  under  the  decree,  had  been  mortgaged,  further  di- 
rections were  given  to  the  master,*  by  an  order  dated  the 
5th  of  October,  1815.  In  pursuance  of  these  orders,  the 

67 


78  CASES  IN  CHANCERY. 

1817.       master  proceeded   in  taking   the  accounts,  and  continued 

v^'-v^-^x  until  March,  1816,  when  he  died  without  having  completed 

METHO.  Ens.  them.     On  the  29th  of  April,  an  order  was  made  trans- 

CHURCH      ferring  the  reference  to  another  master,  who  made  his  repon 

JA^UES.       the  10th  of  April,  1817.     The  plaintiffs  took  exceptions  to  this 

report.     On  motion  of  the  defendant's  counsel,  the  master 

was    ordered,  on   the   8th   of   September,   1817,   to  deliver 

certified  copies  of  the  minutes  of  testimony  taken,  and  of 

the  vouchers  produced  before  him.     (S.  C.  vol.  2.  p.  543.) 

Oct.  l,  2, 3, 4.        The  cause  wis  brought  to  a  hearing  in  October  last,  on 

the   exceptions   to   the   master's   report,  being   eighteen  in 

number. 

Harison  and  Riggs,  for  the  plaintiffs. 
T.  A.  Emmet,  for  the  defendant. 

[  *  79  ]  *It  is  not  thought  necessary,  or  useful,  to  state  the  report 

and  evidence  at  large,  nor  to  note  the  decision  of  the  Court 
on  those  exceptions  which  related  merely  to  matters  of  facts. 
The  material  facts,  as  well  as  the  nature  of  the  other  excep- 
tions, and  the  points  decided,  will  sufficiently  appear  from  the 
following  opinion  delivered  by  the  Court. 

Second  exception.  That  the  master  charged  the  defendant 
with  the  rent  of  the  premises  adjoining  Broadway  and  Crosby 
street,  from  the  1st  of  November,  1810,  to  the  1st  of  May, 
1812,  being  615  dollars,  with  interest,  without  allowing  the 
defendant  to  be  discharged  therefrom,  as  being  received  by 
him  for  and  on  account  of  his  wife,  and  paid  or  otherwise 
accounted  for,  and  settled  with  her  in  her  lifetime. 

THE  CHANCELLOR.     The  defendant  admitted,  before  the 

master,  that  he  had  received  the  rent  in  question,  and  had 

given  his  receipts  for  it ;  and  it  was  proved  by  Usher  and 

his  wife,  that  the  defendant  had  applied  for  the  rents  from  the 

Where  the  hus-  tenant,  and  signed  the  receipts.     The  objection  to  the  al- 

^(Th  'SthPe 'wife  l°wance  is?  tnat  he  had  paid  the  money  over  to  his  wife. 

to    have    the  The  proof  in  support  of  that  allegation,  was  derived  from  the 

management  of  testimony  of  Margaret  Steivart,  \vho  says,  that  she  lived  with 

her  separate  es-   __          T    J  i  T-T  T        i  •       -i    i       i 

rate,  to  receive  Mrs.  Jaques,  when  Usher  hired  the  house,  and  that  sometimes 
strict  &roof  "or"  s^e  receiyed  the  rent  from  Usher,  and  sometimes  the  defend- 
nis  having  paid  ant  received  it,  and  paid  it  over  to  her,  and  that  she  was 
wkh^er  Tn'his  Present>  several  times,  when  Mrs.  Jaques  received  the  rent, 
lifetime, 'for  the  and  also  when  the  defendant  paid  it  over  to  her.  She  heard 
ETot  w^rea'-  Mrs'  Ja(lues  ask  tne  defendant  if  he  had  gotten  the  rent  from 
am,  from  the  Usher,  that  she  wished  him  to  give  it  to  her. 

Confidential  na 

lure  of  the  connection,  the  most  favorable  presumptions  are  indulged  towards  him. 

65 


CASES  IN  CHANCERY.  79 

II  is  said  that  the  most  entire  reliance  is  not  to  be  placed        1817. 
3n  the  accuracy  of  Miss  Stewart's  testimony,  as  her  narrations  ^^-~^~*+-' 
were  a  little  variable  and  inconsistent,  and  her  memory  not  METHO.  Ens 
the  most  regular.     But  in  a  case  of  this  kind,  it  *does  not      CHURCH 
require  the  strongest  proof  to  protect  the  husband ;  and  it       JAQUES. 
ought  to  be  observed,  that  the  character  of  this  witness  stands          [  *  80  ] 
unimpeached,  and  that  she  was  the  confidential  friend  of 
Mrs.  Jaques.     The  rent  in  question  was  part  of  the  proceeds 
or  income  of  the  wife's  estate,  and  the  presumption  is,  that 
the  wife  was  satisfied,  and  that  her  husband  had  duly  ac- 
counted to  her  for  the  rent.     Unless  we  reject  Miss  Stewart'* 
testimony  entirely,  we  must  draw  this  conclusion.     I  admit, 
that,  as  between  strangers,  a  more  strict  and  severe  proof 
would  be  required ;  but  the  books  teach  us  that  the  greatest 
liberality  is  shown,  and  the  most  favorable  presumptions  in- 
dulged, when  the  husband  is  permitted  by  the  wife  to  be  con- 
cerned in  the  management  of  the  income  of  her  separate 
estate,  as  it  occasionally  accrues. 

Exception  allowed. 

Third  exception.  That  the  master  has  charged  the  de- 
fendant with  all  sums  of  money  which  appeared  to  have  been 
possessed  or  claimed  by  the  wife  during  her  marriage,  and 
which  came  into  his  hands,  without  consideration  or  regard, 
whether  such  sums  were  comprehended  in  the  deed  of  mar- 
riage settlement,  or  produced  by  the  sale,  change  or  transfer 
of  some  part  of  the  settled  property,  instead  of  taking  an  ac- 
count of  all  her  personal  estate  at  the  marriage,  and  secured 
to  her  by  the  settlement,  and  permitting  the  defendant  to 
discharge  himself  by  accounting  therefor. 

THE  CHANCELLOR.     This   exception  is   generally  to  the 
mode  of  accounting  before  the  master,  and  it  is  a  sufficient 
answer  to  it,  that  it  was  not  taken  before  the  master.     The 
mode  adopted  was  acquiesced  in.     It  would  be  oppressive, 
and  render  cases  of  reference  a  grievous  burden,  if  a  party 
might  be  permitted  to  lie  by  with  an  objection  of  that  kind, 
until  the  accounts  had  been  taken,  after  a  tedious  *and  ex-         [  *  81  J 
pensive  investigation.     In  this  very  case,  it  was  stated  at  the 
bar,  that  there  had  been  upwards  of  fifty-seven  distinct  hear- 
ings before  the  master.     Few  suitors  would  be  willing  to  en- 
dure the  repetition  of  such  a  reference,  and  they  ought  not 
to  be  compelled  to  submit  to  it,  unless  the  necessity  and    No  exceptions 
justice  of  it  be  very  apparent.     The  rule  of  practice  is  founded  Treport^o"  '» 
in  much  good  sense,  that  no  exceptions  are  to  be  taken  to  a  master,    unfess 
report  which  were  not  made  before  the  master  had  signed  were  °made°to 
the  report ;  for  the  master  might  have  allowed  the  objections,  him  previous  10 
and  have  saved  the  parties  unnecessary  expense,  as  well'as   ""' 

69 


SI  CASES  IN  CHANCERY. 

1817.       tne  Court  unnecessary  trouble.     (2  Harrison's    Prac.  146 

v^^^i^x   Wyatt's  P.  R.  380,  38 1 .)     This  rule  is  not  departed  from,  ex- 

METHO.  EPIS   cept  in  special  cases,  such  as  that  of  Pennington  \.  Muncas- 

OHURCH       jer^  ^j  Maddock's  Ch.  Rep.  555.)  in  which  the  general  rule 

JA^UES.       was  emphatically  admitted. 

The  defendant,  in  his  discharges  exhibited  to  the  master, 
stated  that  he  claimed  to  be  discharged  from  all  moneys  not 
comprehended  in  the  marriage  settlement,  or  not  produced 
by  the  sale,  change,  or  transfer  of  some  part  of  the  property 
included  therein.  If  he  has  been  charged  with  any  prop- 
erty not  so  included  or  so  produced,  it  is  for  him  to  show  it, 
and  not  to  object,  in  general,  to  the  mode  of  accounting.  T 
believe  it  is  not  pretended,  that  he  is  to  be  responsible  beyono. 
the  estate  which  his  wife  owned  at  the  date  of  the  marriage 
settlement,  and  the  income  or  produce,  or  results  of  it.  The 
claim  set  out  in  the  beginning  of  the  defendant's  discharges, 
was  not  a  distinct  objection  to  any  particular  mode  of  ac- 
counting, provided  that  claim  was  tolerated. 

Exception  disallowed. 

Fourth  exception.  That  the  master  has  charged  the  de- 
fendant with  1,208  dollars,  26  cents,  as  received  by  him  for 
the  leasehold  estate  in  Warren  street,  sold  under  Heyle's 
f  *  82  J  mortgage,  and  purchased  by  Wilmerding,  though  *that  was 
the  money  of  the  defendant  himself,  and  grew  out  of  his  own 
proper  funds. 

THE  CHANCELLOR.  The  defendant  admitted,  in  his  answer, 
that  he  received  this  money,  and  never  paid  it  to  his  wife  ; 
and  he  admits  that  it  arose  out  of  part  of  the  property  mort- 
gaged by  Heyle  to  his  wife. 

To  understand  the  nature  of  this  exception,  we  must  look 
into  the  whole  complicated  operation  of  the  defendant  under 
the  mortgage,  and  the  judgment  which  Mrs.  Jaques  had  upon 
the  property  of  Christian  M.  Heyle. 

The  defendant  admits,  in  his  answer,  that  his  wife  held  a 
mortgage  of  Heyle  to  3,430  dollars,  on  two  lots  in-  Warren 
street,  and  one  lot  in  Murray  street,  and  that  she  had  also  a 
judgment  bond  against  him  to  2,772  dollars,  75  cents.  One 
of  the  lots  in  Warren  street,  was  a  freehold  estate,  and  the 
other  lot  in  Warren  street,  and  the  lot  in  Murray  street,  were 
leasehold  etates.  He  admits,  also,  that,  in  the  summer  of 
1806,  his  wife  was  sued  on  a  note  which  her  former  husband, 
Wm.  Alexander,  had  given  to  Heyle,  and  which  had  been 
assigned  to  Robert  Murray,  as  a  security  for  the  payment  by 
Heyle  for  the  leasehold  estate  in  Murray  street ;  that  he  paid 
tha*  note,  to  493  dollars,  15  cents,  out  of  his  own  propei 
70 


CASES  IN  CHANCERY.  82 

moneys,  and  took  an  assignment  of  that  lease  as  his  security  1817. 
for  the  repayment.  This  was  a  very  suspicious  transaction  \^r^s~+^ 
on  the  part  of  the  defendant.  He  admits  that  his  wife's  per-  METHO.  EPIS 
sonal  estate,  in  that  very  summer,  was  1,466  dollars,  16  cents 
This  was  independent  of  all  her  real  estate ;  yet  he  paid  off 
a  note  against  her  with  his  own  proper  moneys,  and  took 
an  assignment  of  a  lease  as  a  security  for  his  reimbursement. 
It  appears  to  me  that  the  fact  of  his  discharging  the  note 
with  his  own  moneys  is  incredible,  and  still  more  so  that  he 
should  require  security  for  the  repayment.  But  he  goes  on, 
and  states,  in  his  answer,  that,  while  engaged  in  settling  that 
business,  he  discovered  that  Trinity  Church  held  a  *mortgage,  f  *  85 
for  1 12  pounds,  12  shillings,  from  Heyle,  for  one  of  the  Warren 
street  lots,  and  which  was  prior  to  his  wife's  mortgage.  He 
then,  without  disclosing  the  discovery  to  his  wife,  buys  in 
that  mortgage,  also  out  of  his  own  proper  moneys,  and  takes 
an  assignment  of  it  to  himself.  He  discovered  further,  that 
one  Wagner  had  a  mortgage  on  the  other  lot  in  Warren 
street,  and  that  mortgage  he  also  pays  off  with  his  own  proper 
moneys,  and  takes  an  assignment  of  it  to  himself.  He  says 
further,  that,  to  secure  himself,  and  to  obtain  possession  of 
the  rents,  he  mentioned  these  mortgages  to  his  wife,  and  she 
then  placed  in  his  hands  the  securities,  by  mortgage  and 
judgment,  which  she  held  against  Heyle,  "  desiring  him  to  do 
the  best  he  could,"  and  apply  the  proceeds,  both  principal 
and  interest,  to  family  expenses,  and  to  repairs  on  her  prop- 
erty. Such  is  the  defendant's  narration  of  this  transaction, 
and  if  he  had  (as  he  says  he  had)  the  entire  confidence  of 
his  wife,  and  all  the  influence  resulting  from  that  confidence, 
and  if  he  assumed  and  exercised  (as  he  avers  he  did)  a  con- 
siderable agency  in  the  management  of  her  property  and 
money  transactions,  then  certainly  such  trafficking  for  his 
own  benefit,  under  the  mask  and  in  the  performance  of  his 
trust,  as  agent,  was  altogether  unwarrantable. 

Having  thus  attached  the  prior  liens  in  himself,  and  ac- 
quired the  unlimited  discretion  over  his  wife's  subsequent 
debts  and  encumbrances,  he  proceeded  to  consummate  his 
speculation.  By  agreement  with  Heyle,  he  gets  into  pos- 
session of  the  rents  of  all  the  lots,  and  comes  to  an  account 
and  settlement  with  Heyle,  by  which  it  would  appear  that 
Heyle  owed  him,  upon  all  his  combined  demands,  8,026 
dollars,  97  cents.  He  next  commenced  two  suits  in  equity 
to  foreclose  the  mortgages,  and  by  an  amicable  reference, 
under  an  agreement  with  Heyle,  7,218  dollars,  26  cents,  was 
reported  due  by  the  master ;  and  all  of  it  was  due  to  him. 
he  says,  because  "  he  had  advanced  as  much  as  the  wife's 
mortgage  and  judgment  for  family  expenses."  A  *sale  took  [  *  84 
place  under  the  decree,  and  the  leasehold  property  in 

71 


84  CASES  IN  CHANCERY. 

1817.       Warren  street  was  purchased  by  Wm.   Wilmerding,  and  tht 
•v_^— s^-*^/  money   paid   into   Court,  and   afterwards   received   by  the 
METHO.  Ens.  defendant,  and  this  is  the  money  now  in  question  under  this 
CHURCH       fourth  exception. 

JAQUES.  But  ic  proceed  with  the  story  ;  the  other  freehold  property 

in  Warren  sireet,  and  the  leasehold  property  in  Murray  street, 
were  both  purchased  by  the  defendant ;  the  one  for  1 ,520 
dollars,  and  the  other  for  4,500  dollars,  and  the  purchase 
moneys,  in  both  cases,  set  off  in  part  of  the  claim  of  the 
defendant  against  Heyle.  The  leasehold  property  in  Murray 
street  the  defendant,  afterwards,  sold  to  his  brother  Robert 
Jaques,  one  of  the  defendants,  for  2,000  dollars,  and  who 
admits  that  he  knew,  when  he  purchased,  of  the  manner  in 
which  the  defendant  had  acquired  his  right  and  title. 

The  defendant  says,  that  he  reported  to  his  wife  what  he 
had  done,  and  she  was  satisfied  and  acquiesced.  He  says, 
also,  that  he  never  paid  or  accounted  to  her  for  the  moneys 
arising  upon  the  sale,  otherwise  than  by  applying  what  Heyle 
owed  her  as  she  directed. 

How  far  Mrs.  Jaques  was  satisfied,  may  be  inferred  from 
what  she  declared  to  Alexander  Clark,  in  the  autumn  subse- 
quent to  these  sales,  when  she  said  that  she  felt  uneasy 
respecting  her  husband's  conduct  relative  to  her  estate  and 
property,  and  that  he  and  his  brothers  were  doing  things 
which  she  thought  injurious  to  her  interest.  She  certainly 
thought  that  the  defendant  was  acting  for  her,  and  not  for 
himself,  in  the  business  of  these  mortgages ;  for  she  told 
Heyle  that  she  and  the  defendant  had  been  selling  some  of 
her  property,  in  order  to  buy  up  the  prior  mortgages. 

By  the  decree  of  the  27th  of  June,  1815,  I  considered 
those  purchases  as  made  by  the  defendant,  as  trustee  for  his 
wife,  with  her  moneys,  and  that  the  land  equitably  belonged 
to  her.  If  the  land  was  hers,  the  moneys  resulting  from 
the  sale  of  those  lands  equally  belonged  to  her.  It  was 
*  ^r>  ]  ^equally  trust  money.  The  exception  is  in  the  face  of  that 
decree,  and  unless  that  decree  was  erroneous,  the  exception 
must  fail.  The  money  paid  by  Wilmerding  did  not  grow 
out  of  defendant's  own  proper  funds.  There  is  decisive 
proof  of  this  from  the  admissions  of  the  defendant  in  his 
answer. 

He  gives,  at  the  end  of  his  answer,  what  he  terms  a  just 
and  true  account  of  all  the  money  and  property  received  by 
him  from  the  1st  of  August,  1806,  out  of  property  belonging 
to  his  wife,  and  one  item  of  the  moneys  so  received  is  the 
oalance  due  her  from  Heyle,  amounting  to  8,026  dollars,  97 
cents.  This  is  the  precise  sum  which,  in  another  part  of  his 
answer,  he  says,  was  due  on  a  settlement  with  Heyle,  after 
he  had  purchased  in,  with  his  own  proper  moneys,  the  otit- 
72 


CASES  IN  CHANCERY. 


85 


standing  encumbrances,  and  taken  in  hand  those  of  his  wife. 
In  one  part  of  his  answer,  he  admits  the  whole  of  that  sum 
to  be  his  wife's  property,  and  in  another  part,  that  a  consid- 
erable part  was  of  his  own  proper  moneys.  Such  incon- 
sistency and  contradiction  shake  the  credit  of  the  defendant's 
allegations  in  his  own  favor;  and  it  seems  to  me  impossible 
to  doubt,  that  the  moneys  arising  from  the  sale  of  the 
mortgaged  premises  belonged  exclusively  to  his  wife. 

The  conclusion  is,  that  this  money  paid  by  Wilmerding 
belonged  to  the  wife,  and  the  pretext  of  the  defendant,  that 
it  was  agreed  between  him  and  his  wife,  according  to  his 
first  answer,  that  he  should  receive  H.eyle's  money,  towards 
reimbursement  of  the  sums  expended  by  him  on  her  account, 
or,  according  to  the  second  answer,  that  he  was  to  apply  it  to 
family  expenses,  and  to  repairs,  is  altogether  inadmissible. 
There  are  witnesses  who  testify  to  similar  declarations  of  the 
wife ;  and  the  claim  of  the  defendant  to  the  part  of  Heyle's 
mortgage  money  contained  in  this  exception,  as  being  his 
own  proper  moneys,  is  probably  founded  on  some  such 
alleged  parol  gift  or  agreement  with  the  wife.  In  this  view, 
the  exception  is  also  repugnant  to  the  decree  *of  the  27th  of 
June,  1815,  by  which  no  allowance  was  to  be  made,  except 
in  special  cases,  out  of  the  principal  or  capital  of  the  wife's 
personal  estate,  for  family  expenses,  on  the  foot  of  any 
general  agreement. 

As  several  of  the  exceptions  look  to  this  point,  it  may  be 
expected  that  I  should  give  the  subject  a  more  extended 
consideration.  The  counsel,  while  upon  these  exceptions, 
cited  several  cases;  in  respect  to  the  wife's  power  of  dispo- 
sition over  her  separate  property,  and  the  requisite  evidence 
of  it.  The  counsel  for  the  defendant  referred  to  2  P.  Wms. 
82,  and  4  Viner,  130 ;  and  the  counsel  for  the  plaintiffs  to  10 
Vesey,  586,  2  Vesey,  jun.,  498,  and  1  Maddock's  Treatise, 
377.  380.  At  the  first  glance  at  the  authorities,  they  appear 
to  be  full  of  contradiction  and  confusion. 

It  is  to  be  observed,  that  by  the  decree  under  which  the 
account  was  taken,  the  defendant  was  only  to  account  for 
the  principal,  and  not  for  the  interest  or  dividends  on  his 
wife's  personal  estate,  received  by  him  during  the  coverture. 
The  agreement  with  the  wife,  as  set  up  by  the  defendant, 
was,  that  the  family  expenses  were  to  be  borne  out  of  the 
income  of  her  estate  ;  and  I  am  not  aware  that  the  defendant 
is,  in  fact,  charged  with  any  part  of  that  income.  He  was 
even  to  be  allowed  for  an  appropriation  of  principal,  when 
founded  on  special  directions  in  the  given  case,  and  appar- 
ently for  her  benefit.  Any  greater  latitude,  would  deprive  a 
wife  of  the  protection  which  the  marri  ige  settlement,  and 
the  creation  of  a  trustee,  threw  around  her,  and  which  pro- 

YOL.  III.  lu  73 


1817. 
^v~^ 

METHO.  EPIS 

CHURCH 

v. 

JtQUES. 


[*86] 


The  question 
as  to  the  power 
of  a  feme  covert 
over  her  sepa- 
rate property, 
settled  to  her 
separate  use/ 
and  the  manner 
of  its  execution, 
examined. 


86  CASES  IN  CHANCERY. 

1817.       tection  the  law  allowed  her  to  assume.     It  would  be  exposing 

v^^-v^^/  the  wife  to  the  acts,  machinations,  and  undue  influence,  which 

METHO.  EPIS.  the  general  dominion  and  power  of  the  husband  must  greatly 

CHURCH       facilitate.     The  question  here  is,  whether  the  defendant  is 

JAQUES.       authorized  to  set  up  a  title  to  the  large  debt  of  his  wife 

against  Heyle,  founded  on  parol  declarations  of  the  wife. 

The  settlement  in  this  case  was  made  with  all  due  form 

[  *  87  ]          *and  solemnity,  and  the  husband  became  a  party  to  the  deed. 

It  was  made  immediately  previous  to  the  marriage,  and  the 

defendant  voluntarily  acceded  to  the  marriage  contract,  upon 

the  express  conditions  contained  in  the  settlement,  and  he 

was  bound  in  good  faith  to  the  observance  of  them.     The 

Terms  of  the  deed  recited  that  "  he  had  agreed  not  to  intermeddle  with,  or 

"eiTaSeSettle"  ^ave  anv  rig*1*'  tit-6  or  interest,  either  at  law  or  in  equity,  to 
any  part  of  the  rents,  issues,  profits  or  proceeds  of  her  prop- 
erty, real  and  personal,  (and  which  was  mentioned  in  general 
terms  in  the  deed,)  but  it  was  to  continue,  remain,  and  be  to 
her,  or  to  such  uses  as  were  in  the  deed  of  settlement  ex- 
pressed." After  this  recital,  the  deed  conveys  her  estate, 
real  and  personal,  (and  which  is  again,  and  in  more  particular 
terms  mentioned,)  to  Henry  Cruger,  in  trust  for  her,  and 
upon  her  marriage,  to  the  use  of  such  persons  and  uses,  and 
subject  to  such  provisions,  as  she,  with  the  concurrence  of 
her  husband,  should,  by  deed,  or  by  will,  without  his  consent, 
give,  limit,  direct,  and  appoint.  In  default  of  such  directions, 
&c.,  then  to  the  trustees,  "  in  trust  to  permit  her  to  hold  and 
enjoy  the  same,  and  receive  and  take  the  rents,  issues  and 
profits,  and  that  her  receipts  should  alone  be  sufficient  dis- 
charges, from  time  to  tim,e,  to  the  end  that  the  same  should 
not  be  subject  to  the  control,  debts,  intermeddlings  or 
engagements  of  her  husband,  but  should  be  to  her  only  use, 
benefit,  and  disposal." 

The  defendant  ought  to  be  precluded,  by  this  deed  of 
settlement,  from  claiming  any  part  of  his  wife's  estate, 
founded  on  any  parol  agreement  or  gift  of  the  wife ;  and 
he  sets  up  no  other.  The  object  of  the  settlement  was  to 
protect  her  against  his  debts,  control,  or  interference,  and 
.he  intention  is  too  manifest  to  be  mistaken.  A  Court  of 
equity  will  certainly  protect  the  wife  in  the  enjoyment  of  the 
property,  according  to  the  settlement.  Her  disposition  of 
the  property  was  to  be  by  deed,  in  concurrence  with  her 

[  *  88  ]  husband,  or  by  will,  without  it ;  and  her  receipts  *were  to  be, 
"  alone,"  sufficient  discharges,  from  time  to  time,  of  her  title 
to  the  rents,  issues,  and  profits.  To  allow  the  husband  to 
set  up  contemporary,  or  subsequent  parol  agreements,  con- 
fessions, or  gifts,  would  be  allowing  him  to  contradict  and 
defeat  the  settlement.  It  would  be,  at  once,  exposing  tht 
wife  to  all  that  undue  influence,  and  that  marital  "  inter 
71 


CASES  IN  CHANCERY.  8a 

meddling  and  control/'  which  the  settlement  was  intended        1817. 
to  prevent.  v-*^v^*^- 

These  marriage  settlements  are  made  to  secure  to  the  MKTH<>.  EPIS 
wife,  and  her  offspring,  a  certain  support  in  every  event,  and  "!™RC 
to  guard  her  against  being  overwhelmed  by  the  misfortunes, 
or  unkindness,  or  vices,  of  the  husband.  They  usually 
proceed  from  the  prudence  and  foresight  of  friends,  or  the 
warm  and  anxious  affection  of  parents.  If  fairly  made,  they 
ought  to  be  supported,  according  to  the  true  intent  and 
spirit  of  the  instrument  by  which  they  are  created  ;  and  I  am 
very  unwilling  to  admit  that,  notwithstanding  the  cautious 
language  of  this  settlement,  the  wife  was  to  be  deemed  to 
have  absolute  dominion  over  the  property,  as  a  feme  sole, 
and  not  bound  by  the  prescribed  form  of  disposition. 

A  Court  of  equity  will  always  carry  the  intention  of  these 
settlements  into  effect,  when  that  intention  is  explicit  and 
certain.  The  Court  will  not  suffer  the  grant  to  be  defeated, 
or  the  intention  of  the  settlement  to  fail.  This  is  the  general 
principle  that  pervades  the  cases,  however  discordant  they 
may  be  in  the  application  of  their  doctrines,  or  however 
perplexingly  subtle  in  their  distinctions.  Now,  if  the  mean- 
ing of  the  settlement  in  this  case  was,  that  the  wife  could 
only  dispose  of  her  estate,  real  or  personal,  by  deed  or  will, 
or  bar  herself  of  the  rents,  issues,  and  profits,  by  her  re- 
ceipts, how  can  the  Court  uphold  the  husband  in  setting 
up  a  parol  disposition,  or  gift,  and  especially  as  against  the 
very  settlement  to  ivhich  he  ivas  a  party  ?  If  the  instrument 
contains  a  prescribed  form  of  disposition,  I  do  not  see  why 
it  is  not  as  available  as  if  the  *deed  contained  a  proviso  r  *  89  ] 
against  any  other  mode  of  disposition.  It  is  a  question  of 
intention  and  construction  merely.  In  this  case,  the  settle- 
ment was  a  condition  precedent,  and  the  husband  married 
upon  that  condition  of  settlement.  Justice  and  good  faith 
require  that  the  wife  should  not  lose,  nor  the  husband 
acquire,  that  separate  use  of  the  property,  unless  in  the  mode 
prescribed.  These  interests  which  married  women  are  per- 
mitted to  take  for  their  separate  use,  are  creatures  of  equity ; 
and  equity  may  modify  the  power  of  alienation  according  to 
the  intention  of  the  settlement,  which  is  to  secure  a  separate 
and  certain  provision  for  the  wife,  free  from  the  control  ot 
her  husband,  and  not  to  be  parted  with  except  in  the  mode 
and  under  the  checks  prescribed.  If  the  technical  rule  of 
aw,  that  when  a  person  is  owner  of  property,  he  takes  it 
with  all  its  incidents,  and  that  every  restraint  on  alienation  is 
repugnant  to  the  ownership,  be  applied  to  these  settlements, 
they  may  be  abandoned  at  once,  as  delusive,  for  the  most 
guarded  proviso  against  alienation  would  be  void.  But  I  am 

75 


69  CASES  IN  CHANCERY 

1817.  notable  to  perceive  any  objection  to  a  fair  construction  oi 
\^r~*^s~*+-s  these  instruments,  nor  to  a  decided  support  of  them  ac- 
METHO.  EPIS.  cording  to  their  object  and  intention,  without  suffering 
CHURCH  ourselves  to  be  embarrassed  by  such  technical  rules  I  wish 
JAQHES.  that  I  felt  myself  more  at  liberty  than  I  do  to  pursue  this 
course,  for  the  weight  of  authority  seems  to  impede  it ;  yet  1 
apprehend  the  cases  are  too  unsettled  and  contradictory  to 
afford  any  certain  conclusion  on  the  point.  They  are. 
certainly,  in  favor  of  the  position,  that  a  married  woman  is 
considered  in  equity,  with  respect  to  her  separate  property, 
as  a  feme  so/e,  and  is  held  to  have  an  absolute  dominion  oi 
power  of  disposition  over  it,  unless  Aer  power  of  disposition 
be  restrained  by  the  deed  or  will  under  which  she  became 
entitled  to  it.  The  next  question  then  is,  When  does  the 
deed  restrain  her  ?  I  think  she  is  to  be  deemed  restrained,  in 
the  present  case,  to  the  modes  of  disposition  mentioned,  and 
[  *  90  ]  that  her  *husband  cannot  set  up  any  other  less  solemn 
alienation  against  her.  Here,  also,  the  weight  of  book 
authority,  and  especially  of  the  writers  who  have  treated  on 
this  branch  of  the  law,  is  against  this  conclusion  :  they  seem 
to  hold,  that  there  must  be  an  express  restriction  upon 
alienation,  either  absolutely,  or  in  some  other  mode  than  the 
one  mentioned,  or  the  wife  will  not  be  bound.  But  if  the 
intention  be  equally  clear  and  certain  in  the  instrument  in 
question,  why  should  more  explicit  language  be  required  ? 
The  intention  evidently  was,  in  this,  as  it  is  in  most  other 
cases  of  property  settled  to  a  married  woman's  separate  use, 
*Jiat  the  interest  should  be  unalienable,  except  in  the  mode 
provided.  Then  why  should  not  the  Court  give  effect  to 
that  intention?  There  is  no  sufficiently  uniform  and  un- 
ruffled current  of  authority  to  prevent  it. 

It  may  not  be  amiss  to  examine  the  adjudged  cases,  in  respect 
to  this  power  of  disposition  in  the  wife  over  her  separate 
property  settled  to  her  separate  use.  There  is  instruction 
to  be  gathered  on  the  march,  though  the  path  be  dreary. 

In  Powell  v.  Hankey  and  Cox,  (2  P.  Wm.  82.)  the  wife, 
before  marriage,  and  with  the  consent  of  her  intended 
husband,  conveyed  her  real  estate  to  such  .uses  as  she, 
during  coverture,  should  appoint,  and  she  assigned  her 
bonds  and  mortgages  to  her  separate  use :  during  coverture, 
and  for  the  course  of  ten  years,  she  constantly  permitted  her 
husband  to  receive  the  interest  of  her  bonds  and  securities, 
without  any  complaint,  either  to  the  debtors  or  to  her 
trustees.  In  a  suit  by  her,  after  her  husband's  death,  it  was 
held,  that  as  to  the  interest  so  received,  every  reasonable 
intendment  was  to  be  made  against  the  wife,  and  her  consent 
to  her  husband's  receipts  of  such  interest  was  to  be  presume^, 
76 


CASES  IN  CHANCERY.  96 

and  he  had  probably  received  and  lived  upon  it  as  a  gift,        1817. 
But  his  estate  was   held  accountable   for   any  part  of  the  ^r^,^^/ 
principal  which  had  been  received.  METHO.  Ens 

This  rule  was  followed  in  the  decree  in  the  cause  now 
*before  me,  and  the  case  is  an  authority  for  the  allowance  of      JAQUES. 
the  second  exception,  and  equally  so  against  the  claim  to  any         [  *  91  ] 
part  of  the  principal  of  the  wife's  estate,  as  advanced  under 
ihis  fourth  exception. 

The  cases  of  Squire  v.  Dean,  (4  Bro.  326.)  Smith  v. 
Camelford,  (2  Ves.  jun.  698.)  and  Brodie  v.  Barry,  (2  Ves. 
and  Beam,  36.)  equally  show  that  the  wife  may  authorize 
the  husband,  in  any  informal  manner,  to  receive  the  income, 
profits,  or  dividends  of  an  estate  settled  to  her  separate  use ; 
and  her  consent  that  he  should  receive  them  for  the  purposes 
of  the  family  will  even  be  inferred  from  the  fact  of  his  having 
actually  received  and  applied  them,  from  time  to  time ;  and 
that  presumption  will  stand  good,  until  destroyed  by  proof 
to  the  contrary.  While  the  presumption  of  her  assent  re- 
mains, the  husband's  estate  will  not  be  held  to  account,  at 
least  for  more  than  one  year's  income  so  received ;  but  there 
is  some  discordance,  among  the  cases,  whether  an  account  of 
the  income  of  the  wife's  estate  can  be  taken  against  the 
husband,  even  for  one  year,  when  he  has  been  permitted  by 
the  wife  to  receive  the  income,  and  has  applied  it  to  family 
purposes.  The  cases  of  Powell  v.  Hankey,  Squire  v.  Dean, 
and  Smith  v.  Lord  Camelford,  already  cited,  and  Dalbiac  v. 
Dalbiac,  (16  Vesey,  126.)  seem  to  be  against  such  an  allow- 
ance ;  but  the  cases  of  Toivnshcnd  v.  Windham,  (2  Vesey,  7.) 
Peacock  v.Moiik,  (Ibid.  190.)  and  Parties  v.  White,  (11 
Vesey,  225.)  are  in  favor  of  it. 

The  same  rule  applies  upon  settlements  of  pin  money, 
where  the  wife  has  permitted  the  arrears  of  pin  money  to 
accumulate,  without  demand,  and  the  husband,  in  the  mean 
time,  has  maintained  her.  (Thomas  v.  Bennet,  2  P.  Wms. 
340.  Countess  of  Warwick  v.  Edwards,  1  Eq.  Cas.  Abr.  140. 
pi.  7.  Lord  Hardwicke,  in  2  Vesey,  jun.  7.  190.  Fowler  v. 
Fowler,  3  P.  Wms.  355.) 

In  respect  to  these  cases  of  income  and  pin  money,  the 
leaning  of  ine  Court  has  oeen  too  mucn  against  me  wire, 
*and  the  presumption  of  her  consent  too  freely  indulged.  [  *  92  J 
Lord  Macclesjield  observed,  in  one  of  the  cases,  (2  P. 
Wms.  82.)  that  "it  was  against  common'right  that  the  wife 
should  have  a  separate  property  from  her  husband,  and, 
therefore,  all  reasonable  intendments  were  to  be  admitted 
against  her."  He  also  observed,  that  though  the  wife  was 
kept  in  awe,  and  hindered  from  making  her  demand,  by 
reason  of  her  husband's  temper,  yet  she  might  have  com- 
plained to  her  trustees,  and  even  if  there  was  no  other  person 

77 


CASES  IN  CHANCERY. 


1317. 


MGTHO.  EPIS. 

CHURCH 

v. 

JAQUKS. 


[*93] 


than  her  husband  of  whom  to  demand  her  allowance,  she 
would  be  concluded  if  she  made  no  demand,  even  if  she 
probably  might  be  afraid  to  do  it.  In  one  other  of  the 
cases,  (3  P.  Wms.  355.)  Lord  Talbot  says,  that  though  the 
husband  settles  an  annuity  in  trust  for  his.  wife's  separate  ule, 
yet  if  he  provide  her  with  '"  clothes  and  other  necessaries,"  it 
will,  for  the  time,  be  a  bar  to  any  demand  for  arrears. 

Such  strong  aversion  to  the  wife's  independent  enjoyment 
of  her  separate  estate,  manifested  so  early  in  the  history  of 
the  cases,  may  have  given  a  permanent  tone  and  color  to  the 
doctrines  of  the  Court ;  and,  perhaps,  the  language  of  these 
cases  will  not  now  be  thought  to  be  founded  in  equity  and 
justice.  The  doctrine  of  Lord  Talbot  did  away  all  the 
beneficial  effect  of  the  settlement ;  for  if  the  mere  supply  of 
necessaries  (which  the  husband  was  bound  at  all  events  to 
furnish)  be  a  bar  to  the  provision,  the  settlement  becomes 
utterly  nugatory.  It  is  as  idle  as  it  would  be  ducere  sulcos  in 
jjulvere.  In  Norton  v.  Turville,  (2  P.  Wms.  144.)  the  wife, 
before  marriage,  with  consent  of  her  intended  husband,  con- 
veyed an  estate  to  her  separate  use,  and  during  coverture 
she  borrowed  money  upon  bond.  Her  separate  estate  was 
held  liable,  after  her  death,  for  this  bond,  though  it  was 
admitted  that  the  bond  was  void,  and  the  giving  of  it  was 
certainly  not  within  the  purview  of  any  disposition  of  her 
estate,  any  more  than  if  she  had  become  bail,  or  bound  in 
recognizance.  The  decision  *was  utterly  irreconcilable  with 
any  known  principle ;  for  if  she  was  to  be  deemed  a  font, 
sole,  it  could  only  be  as  to  the  control  and  disposition  of  her 
separate  estate,  and  the  giving  of  the  bond  was  no  such  act. 
It  is  said,  in  some  subsequent  case,  that  the  wife  had  the 
power  of  appointment  by  deed  or  will ;  and  as  the  separate 
estate  is  here  stated  to  have  been  "  a  trust  estate  for  the  pay- 
ment of  debts,"  it  is  probable  she  made  it  so  by  will,  and  then 
the  decision  stands  on  good  ground. 

Lord  Hardwicke  was  also  disposed  to  carry  the  wife's 
power  of  disposition  over  her  separate  estate,  settled  to  her 
separate  use,  to  a  dangerous  extent,  and  inconsistent,  as  I 
humbly  conceive,  with  the  policy  and  the  intention  of  the 
provision. 

In  Ridout  v.  Lewis,  (1  Afk.  269.)  his  lordship  stated  it  to 
be  a  general  rule,  that  if  the  wife  suffered  her  husband  to 
receive  what  she  had  a  right  to  receive  to  her  separate  use, 
and  they  continued  to  cohabit  together,  it  implied  a  consent 
in  the  wife  to  submit  to  such  a  method ;  and  he  said  she 
might  come  to  an  agreement  with  her  husband  in  relation  to 
any  thing  she  was  entitled  to  separately.  This  was  the  case 
of  an  annuity  settled  by  the  husband  upon  the  wife ;  and 
here  the  presumption  of  her  consent  was  rebutted,  and  her 
78 


CASES  IN  CHANCERY.  93 

husband's  estate  held  to  account  for   short  payments,  for        1817. 
several  years.  ^^~^~**-' 

There  is  nothing  peculiar  in  this  case,  though  Lord  METHO.  EPU 
Hardwicke  did  not  explain  the  nature  of  the  agreements  the 
wife  might  make  with  the  husband,  nor  under  what  guards  JAQUES 
and  checks,  if  any,  they  were  to  be  made.  The  dictum  is 
too  loose  to  be  of  any  weight.  But  in  Stanford  v.  Marshall, 
(-2  Atlc.  69.)  a  trust  of  real  estate  was  created  for  the  benefit 
of  daughters,  and  the  rents  and  profits  appropriated  for  their 
separate  use,  whether  sole  or  covert,  and  to  be  paid  to  whom 
they  should  appoint.  They  became  surety  in  a  bond  with 
their  husbands  for  their  debts,  and  the  rents  and  profits  of 
the  trust  estate  were  held  responsible  *to  the  creditor,  be-  [  *  94  ] 
cause  the  daughters  had  an  absolute  power  over  them,  and 
could  create  any  lien  on  them.  This  was  decided  at  the 
rolls,  and  the  principle  was  correct,  that  the  daughters  had 
the  power  to  assign  the  rents  and  profits,  by  mortgage  or 
otherwise ;  but  there  is  no  reasoning  to  show  that  the  wife 
could  create  a  lien  on  the  rents  and  profits,  by  giving  a  bond 
for  her  husband's  debt.  The  bond  was  null  and  void,  and 
had  no  reference  to  the  separate  estate.  The  principle  had 
no  application  to  the  case.  In  another  case,  (  Cleric  \.  Miller, 
2  Aik.  379.)  a  married  woman,  having  a  separate  estate, 
promised  to  pay  her  husband's  workmen  ;  and  the  master  of 
the  rolls  there  doubted  whether  her  bare  promise,  by  parol, 
could  bind  her  lands.  It  is  difficult  to  perceive  upon  what 
reasoning  or  doctrine  the  bond,  or  parol  promises,  of  a.  feme 
covert,  could  for  a  moment  be  deemed  valid.  She  is  inca- 
pable of  contracting,  according  to  the  "  common  right"  men- 
tioned by  Lord  Macclesjield ;  and  if  investing  her  with 
separate  property  gives  her  the  capacity  of  a  feme  sole,  it  is 
only  when  she  is  directly  dealing  with  that  very  property. 
The  cases  do  not  pretend  to  give  her  any  of  the  rights  of  a 
feme  sole,  in  any  other  view,  or  for  any  other  purpose. 

In  Allen  v.  Papivorth,  (1  Vesey,  163,  and  Belt's  Supple- 
ment, p.  88.)  the  wife,  on  a  bill  by  her  and  her  husband, 
submitted,  that  the  profits  of  her  separate  estate  should  be 
applied  to  pay  her  husband's  debts,  and  Lord  Harilwicke 
held  her  bound  by  that  submission ;  and  that,  as  she  had  the 
power  to  receive  the  profits  o.  an  estate  to  her  separate  use, 
and  to  appoint  them  as  she  pleased,  the  bill  and  submission 
were  equivalent  to  an  actual  appointment.  In  that  case 
there  was  no  mode  of  exercising  the  power  prescribed ;  and 
perhaps  this  mode  by  bill,  when  her  free  consent  can  be 
ascertained,  may  be  deemed  as  safe  and  expedient  as  r  ny 
other  mode  of  appointment. 

In  Ellis  v.  Atkinson,  and  Clarke  v.  Pistor,  (3  Bro.  347. 
note,)  and  Chesslyn  v.  Smith,  (8  Vesey,  183.)  the  profits 

79 


95*  CASES  IN  CHANCERY. 

1817.       *°f  stock  were  settled  to  the  separate  use  of  the  wile,  an 
x^rf^-v—^x  as  she  should  designate  in  writing ;  and  her  consent,  signified 
METHO.  EPIS.  by  a  bill  filed  jointly  by  her  and  her  husband   was  deemed 
CHURCH       sufficient.     Yet  even  here  the  cases  are  contradictory,  or  else 
JAQUES.       they  are  separated  by  very  subtle  distinctions,  for  in  Black- 
wood  v.  Norria,  (cited  in    Cas.  temp.   Tallot,  43.)   where  a 
wife  had  4000  pounds  devised  in  trust  for  her  separate  use, 
«,he  master  of  the  rolls  would  not,  on  a  bill  by  husband  and 
wife,  allow  the  trustee  to  pay  to  the  husband,  though  the 
wife  was  in  Coutt  and  consenting. 

The  only  question,  in  Peacock  v.  Monk,  (2  Vescy,  190.) 
was,  whether  the  wife  could  make  a  will  of  real  property 
purchased  by  her  during  coverture ;  and  there  is  no  decision 
that  affects  the  general  question ;  but  Lord  Hardwicke  said 
that  the  wife  might  dispose  of  her  separate  personal  estate, 
by  act  in  her  life,  or  by  will,  though  nothing  was  said  in  the 
marriage  settlement  as  to  the  mode.  The  nature  of  the  act 
is  not  here  explained,  and  he  probably  meant  by  deed,  as 
contradistinguished  from  a  will ;  but  he  went  further  with 
his  dicta,  and  said,  that  the  wife  could  charge  her  separate 
estate  by  her  bond.  The  cases  that  have  occurred  on  this 
point  have  been  considered.  Mere  dicta  are  dangerous 
guides ;  and  if  listened  to  as  authority,  they  become  very 
prejudicial  to  free  investigation  and  accurate  science.  When 
any  great  principle  of  law  is  under  discussion,  it  is  safest  to 
recur  only  to  the  decision  of  adjudged  cases,  and  to  confine 
them  to  the  point  in  controversy. 

In  Grigly  v.  Cox,  (1  Vesey,  517.)  there  was  a  marriage 
settlement  of  an  estate,  in  trust  for  the  wife,  to  receive  the 
rents  and  profits  for  her  separate  use,  and  as  she  should  direct 
and  appoint.  There  was  no  form  of  appointment  mentioned. 
She,  by  deed  of  appointment,  sold  part  of  the  estate  to  a 
tn;rd  person,  without  consulting  her  trustee,  and  with  the 
concurrence  of  her  husband.  Lord  Hardwicke  held  the  pur- 
[  *  96  ]  rhase  to  be  valid,  and  the  consent  of  the  *trustees  not  neces- 
bary.  He  laid  down  the  rule  of  the  Court  to  be,  that  where 
any  thing  is  settled  to  the  wife's  separate  use,  she  is  consid- 
ered as  a  feme  sole,  and  may  appoint  in  what  manner  she 
pleases,  and  that  her  trustees  need  not  join  unless  made 
necessary  by  the  instrument ;  and  that  the  wife  might  make 
an  appointment  in  favor  of  the  husband,  if  fairly  procured, 
without  improper  influence,  by  ill,  or  by  extraordinary  good 
usage,  to  induce  her  to  it. 

The  answer  of  the  wife  in  that  case  (see  Belts  Supple- 
ment, p.  218.)  averred,  that  she  had  executed  the  deeds  by 
the  threats  and  compulsion  of  her  husband,  but  the  answer 
was  not  supported  by  proof;  yet  this  very  defence  admon- 
ishes us  of  the  danger  of  allowing  the  wife  to  act  without  the 
80 


CASES  IN  CHANCERY.  90 

aid  of  her  trustee,  who  was  created  for  her  protection,  and        1817. 
who  constitutes,  perhaps,  the  only  sufficient  shield  against   ^^-x^**^ 
the  undue,  secret,  and  powerful  influence  of  the  husband.        METHO.  Ens 

In  the  next  case  of  Pawlet  v.  Deleval,  (2  Vesey,  1563.)  the  CHURCH 
subject  of  the  wife's  power,  in  the  disposal  of  her  separate  JAQUES. 
property,  came  again  in  discussion.  The  wife,  by  an  agree- 
ment with  the  husband  upon  the  marriage,  had  property 
vested  in  trustees  for  her  separate  use.  During  the  coverture, 
she  and  her  husband  called  in  the  money,  and  by  two  deeds 
executed  by  them  and  the  trustee,  they  recited  the  fact  of 
the  property  being  in  trust  for  her  separate  use,  and  that  it 
was  subject  to  her  direction  and  appointment,  ivithout  any 
particular  form  prescribed,  and  that  the  husband  and  wife  had 
agreed  to  receive  the  money  and  discharge  the  trustee.  The 
money  was  paid  to  them,  with  the  approbation  of  the  trustee, 
and  reinvested  in  the  husband's  name,  and  the  trustee  dis- 
charged. The  husband  continued  to  receive  the  interest 
afterward  during  his  life,  and  the  wife,  as  his  executrix,  after 
his  death,  by  various  acts,  affirmed  the  transaction.  Lord 
Hardwicke  held  her  barred  ;  but  in  the  long  and  elaborate 
opinion  which  he  delivered,  he  relied  on  the  confirmation  she 
had  given  when  a  widow  ;  *and  "  it  is  very  clear,"  said.  Lord  [  *  9* 
Rossi/In,  in  a  subsequent  case,  "  that  the  chancellor,  in  this 
case,  did  not  entertain  the  idea  that  a  married  woman,  having 
separate  property,  was,  to  all  intents  and  purposes,  placed  on 
the  same  footing  as  a.  feme  sole."  He  mentioned  the  agree- 
ment to  vest  the  property  in  the  husband  as  being  under  their 
hands  and  seals,  and  that  the  trustee  was  an  executing  party. 

There  were  several  observations  made  in  the  course  of  this 
opinion  by  way  of  illustration,  which  formed  no  part  of  the 
decision.  Thus,  he  said,  he  knew  of  no  determination  re- 
quiring the  intervention  of  a  trustee,  or  a  judicial  consent  in 
Court,  to  enable  the  wife  to  dispose  of  her  separate  property 
to  her  husband,  and  that  there  were  instances  where  the 
wife,  by  acts  in  pais,  had  parted  with  her  property  to  her 
husband,  and  also  where  they  had  pledged  a  part  of  it  for 
his  debts.  But  he  admitted,  that  if  the  circumstances  required 
by  the  trust  had  not  been  pursued,  the  Court  might  disregard 
the  disposition. 

These  are  the  material  cases  on  the  subject  in  the  time  of 
Lord  Hardwicke;  and  though  these  decisions  have  been 
considered  as  controlling  the  better  judgment  of  Lord  Thur- 
low,  and  as  binding  Lord  Eldon  to  allow  the  wife  a  power  of 
disposition  beyond  the  policy  and  intention  of  the  settlement, 
yet  it  is  to  be  observed,  that  not  one  of  them  gives  the  wife 
a  right  of  disposal  contrary  to  the  form  of  appointment  pre- 
scribed by  the  instrument ;  and  it  would  seem  that  these  de- 
cisions have  been  cited  in  support  of  doctrines  which  they  can 

VOL.  III.  1\  81 


97 


CASES  IN  CHANCERY. 


1817. 

^v—*». 

METHO.  EPIS 

CHURCH 

v. 
JAQUES. 


[*98] 


never  be  made  to  sanction.     The  most  objectionable  parts 
of  those  cases  are  not  decisions,  but  extrajudicial  dicta. 

There  is  one  decision  of  Lord  Hardwicke  which  ought  not 
to  pass  unnoticed,  because  he  was  there  induced  to  maintain 
the  limited  powers  of  the  wife,  contrary  to  the  language  of 
the  former  cases.  I  allude  to  the  case  of  Caverley  v.  Dudley 
and  Bisco,  (3  Atk.  541.)  where  an  estate,  *real  and  personal 
was  settled,  in  trust,  to  pay  the  produce  thereof  to  the  wife  for 
life,  for  her  separate  use,  exclusive  of  her  husband,  and  she 
borrowed  money  on  an  annuity  for  her  life  granted  out  of  that 
estate.  The  chancellor  held,  that  "  it  was  not  the  intention 
of  the  grantor  that  the  wife  should  anticipate  the  produce  of 
her  estate,  by  raising  money  upon  it,  and  words  should  have 
been  thrown  into  it  to  restrain  her  from  doing  it ;  but  as  there 
were  no  such  words,  she  might  raise  money  by  way  of  loan, 
but  not  by  way  of  annuity  for  her  life,  as  it  was  too  large  an 
anticipation."  This  decision  is  evidently  inconsistent,  for  it 
must  have  been  as  much  against  the  intention  of  the  settle- 
ment that  she  should  anticipate  the  produce  of  the  estate  by 
loan,  as  by  an  annuity ;  and  Lord  Eldon,  in  Jones  v.  Harris, 
(9  Vesey,  494.)  pointedly  condemns  such  arbitrary  dealing 
with  a  contract. 

In  Newman  v.  Cartony,  (3  Bro.  347,  note,  and  568.)  there 
was  a  stretch  beyond  any  of  the  preceding  decisions  ;  for  the 
wife  had  a  legacy  given  for  her  sole  use,  with  a  power  of  ap- 
pointment by  will,  and  in  default,  to  her  executors  ;  and  Lord 
Bathurst  ordered  the  money  to  be  paid  to  the  husband,  with 
her  consent.  The  note  of  the  case  is  extremely  imperfect, 
and  we  are  left  to  infer  that  it  was  the  case  of  a  bill  filed,  and 
a  consent  given  in  Court.  But  the  objection  to  the  case  is, 
that  the  grantor  had  prescribed  the  mode  of  appointment,  by 
will,  and  the  mention  of  a  particular  mode  excluded  others. 
The  property  was  intended  to  be  unalienable,  except  in  the 
mode  prescribed  ;  and  what  right  had  the  Court  to  defeat  the 
settlement  ?  The  argument  in  support  of  the  decision  may 
be,  that  the  wife  had  an  absolute  gift,  with  all  the  rights  of 
owner,  as  a  feme  sole,  and  that  the  restriction  on  her  right 
of  disposition,  except  by  will,  was  inconsistent  with  that  right, 
and  void.  This  argument  proves  too  much  ;  for  it  would  de- 
stroy all  the  express  limitations  and  provisoes  thrown  into 
these  settlements ;  and,  besides,  such  a  technical  legal  *ob- 
jection  is  inapplicable  to  the  views  with  which  these  provisions 
are  considered,  and  the  purposes  for  which  they  are  upheld 
in  equity. 

The  case  of  Hulme  v.  Tenant  (1  Bro.  16.)  was  the  one 
that  first  brought  the  subject  of  these  settlements  before  Lord 
Thurlow.  A  leasehold  and  freehold  estate  had,  on  a  mar- 
riage settlement,  been  conveyed  to  trustees,  to  receive  and 
82 


CASES  IN  CHANCERY.  99 

pay  the  rents  and  profits  to  the  wife  for  her  separate  use,  and        1817. 
to  convey  the  estate  itself  to  such  use  as  she,  by  deed  or  will,  \^*-^~+^ 
should  appoint.     The  wife  joined  in  a  bond  for  her  husband's  METHO.  EPIS 
debts,  and  on  a  bill  filed  by  the  obligee,  seeking  to  enforce      C«URCH 
the  bond  against  the  wife's  separate  estate,  Lord  Bathurst      JAQUES. 
dismissed  it;  but  on  a  rehearing  before  Lord  Thurloiv,  he 
sustained  the  bill,  and  directed  an  account  of  the  rents  and 
profits  of  the  leasehold  estate  of  the  wife,  for  the  purpose  of 
satisfying  the  bond.     He  would  not  touch  the  freehold  estate. 
Lord  Eldon  said,  (9  Vcsey,  188.)  that  this  was  a  prodigiously 
strong  case,  though  it  was  afterwards  shaken.     It  cannot  be 
considered  as  very  strong,  on  the  ground  of  authority,  for  the 
preceding  chancellor  was  of  a  different  opinion,  and  made  a 
different  decree  in  the  very  case. 

In  giving  his  opinion  in  that  case,  the  lord  chancellor  held 
that  a  feme  covert,  acting  with  respect  to  her  separate  property, 
was  competent  to  act,  in  all  respects,  as  if  she  was  a.  feme  sole; 
yet  this  rule  does  not  appear  to  be  consistent  with  what  he 
says,  in  this  same  case,  when  he  holds  that  it  is  different  where 
the  consent  of  the  trustees  is  made  essential.  He  maintain- 
ed, that  a  Court  of  equity  would  make  a,  feme  covert  bound 
to  the  whole  extent  of  her  separate  estate  for  her  personal 
engagements  ;  yet  he  admits  that  her  bond  was  void,  as  such, 
and  that  there  could  be  no  personal  decree  against  her,  and 
that  he  could  not  touch  her  real  estate,  by  ordering  her  to 
execute  the  power  of  appointment,  to  satisfy  her  personal 
engagement.  The  great  difficulty  which  the  chancellor  had 
in  granting  the  *remedy,  and  the  necessity  he  felt  of  stopping  [  *  100 
short  of  entire  relief,  arose  from  the  innovation  which  had 
been  made  upon  the  principle  of  these  settlements.  The 
whole  decision  was  perplexed  and  inconsistent.  The  giving 
the  bond  had  nothing  to  do  with  an  exercise  of  power  over 
the  separate  estate,  and  was  no  execution  of  a  power  of  ap- 
pointment. If  it  was,  it  ought  to  have  bound  the  land,  as 
well  as  the  rents  and  profits;  and  if  the  wife's  bond,  having 
no  reference  to  her  estate,  or  power  over  it,  be  available,  she 
may  equally  bind  herself  by  all  possible  personal  engagements, 
as  much  as  a  feme  sole,  to  the  extent  of  her  property. 

But  Lord  Thurlow,  afterwards,  in  Ellis  v.  Atkinson,  (3 
Bro.  347,  note,  and  p.  565 ;  Dickens,  759,  S.  C.)  paused 
upon  the  consequences  of  this  doctrine,  and  doubted  very 
much  whether,  upon  a  settlement  in  trust  that  the  interest  of 
money  in  the  funds  be  paid  'nto  the  hands  of  the  wife,  or  as 
she  should,  by  writing,  from  time  to  time,  appoint,  he  could 
even  accept  of  the  wife's  consent  in  Court,  on  a  bill  by  hus- 
band and  wife,  to  carry  into  effect  an  agreement  of  theirs,  by 
a  sweeping  disposition,  by  deed,  that  the  interest  for  their 
ioint  lives  should  be  paid  to  the  husband.  However,  after 

83 


100 


CASES  IN  CHANCERY. 


1817. 


METHO.   Ens. 
CHURCH 

v. 
JAQ.UES. 


[M01J 


[  *  102  ] 


several  hearings  and  long  consideration,  he  made  the  deereo 
in  pursuance  of  the  wife's  deed,  and  her  consent  in  Court. 

This  case  was  by  no  means  so  strong  as  that  of  Hulme  v. 
Tenant ;  and  upon  the  principles  of  that  decision,  there  could 
have  been  no  hesitation.  But  here  the  appointment  of  the 
interest  was  to  be  from  time  to  time;  and  the  intention  un- 
doubtedly was,  that  the  power  was  to  be  exercised  occasion- 
ally upon  the  dividends  as  they  should  grow  due,  and  not  by 
way  of  anticipation  upon  the  whole  at  once ;  and  if  that  in- 
tention had  prevailed,  instead  of  the  technical  rule  of  law, 
which  holds  such  qualification  upon  the  power  of  disposition 
to  be  inconsistent  with  absolute  ^ownership,  the  decision  in 
that  case  must  have  been  different. 

The  same  point  arose  again,  in  Pybus  v.  Smith,  (3  Bro.  340. 
1  Vese$,jun.  189.  S.  C.)  In  that  case,  there  was  a  settle- 
ment after  marriage  of  real  and  personal  estate,  in  trust,  to 
pay  the  rents  and  dividends,  as  the  wife  should,  in  writing, 
from  time  to  time,  direct;  and  in  default  thereof,  to  pay  them 
into  her  own  hands,  for  her  separate  use.  She  and  her  hus- 
band, by  deed,  conveyed  the  property,  by  a  general  sweeping 
appointment,  to  her  husband's  creditors,  as  a  security  for  his 
debts.  On  a  bill  by  the  creditors,  Lord  Thurlow  carried  the 
deed  into  effect,  but  he  professed  to  act  upon  the  authority 
of  the  prior  cases,  and  directly  against  his  own  inclination 
and  judgment.  He  said,  that "  if  the  point  was  open,  he  should 
have  thought  that  a  feme  covert,  who  had  a  separate  estate, 
should  not  part  with  it  without  a  judicial  examination  ; "  and 
he  wished,  to  adopt  the  principle  that,  "  so  far  forth  as  the 
instrument,  creating  her  separate  estate,  makes  her  propri- 
etor, so  far  she  was  a  feme  sole ;  and  if  she  had  pledged  the 
estate,  according  to  her  power,  the  trustees  must  hold  it  to 
the  uses  she  appoints."  He  said,  further,  that  "  if  the  trust 
was  to  pay  the  rents  and  profits  to  her,  upon  any  instrument 
signed  by  her  since  the  last  pay  day,  an  instrument  signed 
before  would  not  do."  Yet  he  concluded  that  h,e  had  gone 
too  far  on  a  former  occasion,  and  that  if  the  feme  covert  "  saw 
what  she  was  about,"  the  Court  must  support  her  alienation. 

I  cannot  see  the  propriety  of  holding  the  Court,  forever 
thereafter,  bound  by  a  decision  made  on  principles  confessedly 
false,  or  pushed  "  too  far."  It  is  admitted,  in  this  case,  again 
and  again,  that  the  wife  has  no  power  over  the  estate  but 
what  the  instrument  gave  her;  and  this  is  a  doctrine  intelligi- 
ble, just,  and  sound.  "  If  it  was  the  intention  of  the  parent," 
he  observes,  "  to  give  a  provision  to  a  child  in  such  a  way 
that  she  cannot  alienate  it,  *he  saw  no  objection  to  its  being 
done ;  but  such  intention  must  be  expressed  in  clear  terms." 
This  was  making  the  whole  question  turn  upon  a  fair  con- 
struction of  the  deed  of  settlement,  and  rather  than  give  these 
84 


OASES  IN  CHANCERY.  102 

words,  from  time  o  time,  an  operation  according  to  the  sense,        1817. 
in  consequence,  perhaps,  of  the  embarrassment  created  by  •v_-»-^--*^. 
these  decisions,  Lord  Thurloiv,  in  Miss  Watson's  case,  caused  METHO.  EPI.I 
these  words,  and  not  by  anticipation,  to  be  inserted  in  the 
deeds  of  settlement,  as  a  bar  to  these  improvident  and  sweep- 
ing  dispositions,  by  the  wife,  of  all  her  future  interest  in  the 
provision.     (1  Rose,  200.    11  Vesey,  221.)     And  Lord  El- 
don,  in  a  recent  case,  (Jackson  \.  Hobhousc,  2  Meriv.  483.) 
said,  that  Lord    Tkurlow  adopted  this   proviso  against   the 
wife's  assigning  her  interest  by  any  mode  of  anticipation, 
after    struggling   hard,  for  a  long  time,  to   bring  the    wife 
into  a  situation  consistent  with  the  manifest  intention  of  the 
settler ;  and  he  held  such  a  proviso  valid,  and  so  did  Lord 
Alvanley.     This  proviso  has  been  followed  ever  since,  and 
it  was  supported  by  Lord  Eldon  in  the  case  referred  to. 

We  come  next  to  the  case  of  Sockett  and  wife  v.  Wray,  (4 
Bro,  483.)  which  overturned  much  of  the  doctrine  of  Lord 
Thurlow,  and  which,  on  many  accounts,  merits  all  our  attention. 

The  settlement  was  of  stock,  in  trust,  and  by  a  deed,  to 
which  the  husband  and  wife  were  parties,  to  pay  the  dividends 
to  the  wife  for  her  separate  use,  and  with  power  in  her  to 
dispose  of  the  stock  by  will.  The  husband  and  wife,  by  bill, 
sought  to  compel  the  trustees  to  sell  the  funds,  and  pay  the 
money  to  the  husband.  The  master  of  the  rolls  (Lord 
Alvanley)  held  that  the  wife  could  not  waive  the  benefit  of 
the  settlement,  and  give  the  capital  away  ;  and  that  she  could 
only  dispose  of  it  in  the  mode  provided  by  the  settlement, 
which  was  by  will,  being  an  act  ambulatory  and  revocable  in 
her  lifetime.  He  held,  that  the  wife  had  no  disposing  poiver 
but  what  teas  given  her  *by  the  deed,  and  he  meant  to  ques-  f  *  103 
tion  the  decision  in  Neivman  v.  Cartony,  and  Hulme  v.  Ten- 
ant, E'lis  v.  Atkinson,  and  Pybus  v.  Smith. 

This  case  has  been  much  doubted  since,  and  it  would  seem 
to  have  been  directly  overruled  by  Sir  Wm.  Grant,  in  Heathy 
v.  Thomas,  (15  Vesey,  596.)  for  it  was  there  held,  upon  a 
parallel  settlement  and  power,  that  the  wife  had  an  absolute 
interest,  and  might  bind  the  estate  by  her  bond,  and  was  not 
confined  to  the  will,  which  was  the  mode  prescribed.  But 
it  appears  to  me,  with  great  respect  for  the  contrary  author- 
ity, that  this  decision  of  Lord  Alvanley  was  founded  on  sound 
principles  of  equity  and  policy,  and  applicable  to  the  case. 
So,  in  Hyde  v.  Price,  (3  Fesej/,437.)  where  the  husband  had 
settled  an  allowance,  for  their  joint  lives,  on  the  wife,  by  way 
of  separate  maintenance,  Lord  Alvanley  would  not  permit  the 
wife  to  grant  an  annuity  out  of  the  dividends,  for  that  would 
defeat  the  intention  of  f,he  instrument,  and  leave  the  wife  with- 
out a  maintenance.  I  do  not  know  that  this  last  decision  has 
ever  been  questioned,  yet  it  seems  to  rest  on  the  same  princi- 

85 


1 03 


CASES  IN  CHANCERY. 


1817. 


METHO.  EPIS. 
CHUROH 

v. 
JAQUI;S. 


104] 


pie  as  the  other,  of  giving  effect  to  the  intention  of  the  in- 
strument, and  to  the  policy  and  utility  of  the  provision  ;  anc 
the  wife  had,  in  equity,  as  clear  and  stable  an  interest  in 
these  dividends,  as  she  could  have  had  in  any  other  property, 
by  settlement. 

Lord  Rosslyn  has,  in  several  instances,  pursued  the  same 
course  of  reasoning  and  decision,  and  dissented  entirely  from 
the  extreme  length  to  which  Lord  Thurlow  had  pushed  the 
disposing  power  of  the  wife. 

In  Milnes  v.  Burlc,  (2  f-resey,  jun.  488.)  he  observed,  that 
he  did  not  assent  to  the  position  in  its  full  extent,  that  where 
a  married  woman  had  separate  property,  she  was,  to  all  intents 
and  purposes,  to  be  considered  a  feme  sole.  This  doctrine 
had  been  carried  a  great  deal  further  than  it  was  meant,  and 
he  did  not  think  it  ought  to  be  applied  to  transactions  with 
her  husband,  for  that  would  throw  down  *all  the  guards  which 
the  maxims  of  the  common  law,  and  the  prudence  and  care 
of  the  Court,  had  established,  with  regard  to  trust  estates,  in 
equity,  and  the  influence  of  husbands.  He  said,  that  Paw- 
let  v.  Delaval  was  the  only  case  arising  directly  upon  a  gift 
between  husband  and  wife  ;  and  there  Lord  HardicicJce  placed 
the  validity  of  it  essentially  upon  the  confirmation  of  the  wife 
after  her  husband's  death. 

In  Whistler  v.  Newman,  (4  J^esey,  129.)  Lord  Rosslyn  went 
more  largely  and  freely  into  the  consideration  of  this  perplex- 
ed and  litigated  subject. 

The  settlement,  in  that  case,  was  of  stock,  the  property  of 
the  wife,  in  trust,  to  pay  the  dividends  into  the  hands  of  the 
wife  during  her  life,  for  her  separate  use,  free  from  the  debts, 
intermeddling  or  control  of  the  husband,  and  that  her  receipt 
alone  should  be  a  sufficient  discharge,  and  after  her  death,  to 
the  use  of  the  husband  for  life,  and  then  to  her  children,  or 
according  to  her  appointment  by  will.  The  trustees,  at  the 
request  of  the  wife,  sold  the  estate,  and  paid  the  money  to 
the  husband,  taking  his  bond  of  indemnity,  to  which  the  wife 
was  a  witness.  The  husband  died  insolvent,  and  the  widow 
and  children,  by  bill,  sought  to  compel  the  trustees  to  replace 
the  stock,  and  pay  the  dividends  to  the  widow  from  the  hus- 
band's death. 

It  was  contended,  on  one  side,  (and  Sir  John  Scott  was  one 
of  the  counsel  who  so  contended,)  that,  according  to  the  decis- 
ions of  Lord  Thurlow,  the  wife  was  competent  to  deal  with 
that  property  as  a.  feme  sole,  by  becoming  surety  for  her  hus 
band's  debts,  or  by  making  him  a  present  of  the  whole  fund  ; 
while,  on  the  other  side,  it  was  contended,  that  it  was  not 
within  the  provisions  or  intention  of  the  settlement,  that  she 
should  assign  the  whole  fund. 

Il  is  to  be  observed,  that  here  was  no  mode  of  disposition 
96 


CASES  IN  CHANCERY.  *105 

or  appointment  of  her  life  estate  mentioned,  and  the  case  i817. 
does  not3  therefore,  come  up  to  those  where  a  mode  of  ap-  ^^^^^^^ 
pointment  is  mentioned.  But  the  chancellor  considered  *the  METHO.  EPIS 
act  of  the  trustees  a  gross  breach  of  trust ;  for  they  were  con-  'HI^KC 
stituted  to  guard  the  wife  against  the  influence  of  the  husband.  JAQVEU. 
He  considered  that  the  act  of  taking  a  bond  of  indemnity,  and 
getting  the  wife's  consent  by  making  her  witness  the  bond, 
was  an  iniquitous  desertion  of  their  duty.  It  was  considered 
that  the  wife  had  no  power  in  that  case  to  assign  the  stock 
itself,  or  the  principal.  The  chancellor  took  occasion  to  ob- 
serve, that  the  doctrine  in  Hulme  v.  Tenant  took  away  all 
protection  from  married  women,  and  made  trusts  for  their 
oenefit  of  very  little  importance  ;  that  if  this  rule  in  that  case, 
and  in  Pybiis  v.  Smith,  and  Ellis  v.  .Atkinson,  was  to  be 
pushed  to  its  full  extent,  a  married  woman  having  trustees, 
and  her  property  under  the  administration  of  chancery,  was 
infinitely  worse  off,  and  more  unprotected,  than  she  would  be 
if  left  to  her  legal  rights,  which  the  husband  cannot,  proprio 
marie,  affect.  Her  legal  rights  could  not  be"  taken  from  her, 
(as  was  attempted  in  that  case,)  without  a  formal  deed,  or  by 
implication  and  inference  from  conversations  and  conduct. 
Upon  Pybus  v.  Smith,  it  would  be  the  vainest  act  to  make  a 
settlement.  Lord  Rosslyn  evidently  considered,  that  there 
was  a  great  difference  between  a  dealing  between  the  hus- 
band and  the  wife,  or  between  a  creditor  and  the  wife,  in 
respect  to  her  separate  interest,  and  that  the  same  strictness 
might  not  be  necessary  in  the  latter  case.  He  thought,  that 
if  a  creditor,  dealing  with  a  married  woman,  had  got  any  legal 
hold  of  her  property,  equity  might  leave  the  legal  right  undis- 
turbed, but  would  certainly  never  assist  or  improve  it. 

The  last  case  on  the  subject  before  Lord  Rosslyn,  was  that 
of  Mores  v.  Huish,  (5  Vesey,  692.)  in  which  the  wife  had  a 
life  interest  given  to  her  in  the  rents  of  a  freehold  estate, 
without  any  power  of  appointment,  otherwise  than  that  the 
same  were  to  be  solely  at  her  disposal.  She  joined  with  her 
husband  in'  securing  an  annuity  to  a  purchaser,  upon  these 
rents,  who  took  the  security,  contrary  to  the  ^remonstrance  [  *  106 
of  the  trustee.  The  bill  was  filed  by  the  purchaser  against 
the  trustee,  and  the  chancellor  refused  to  aid  him,  and  doubt- 
ed whether  a  trust  to  receive  rents,  and  pay  them,  from  time 
to  time,  was  a  trust  to  pay  by  anticipation.  This  decision 
arose  from  Lord  Rosslyn's  reluctance  to  sanction  these  im- 
provident and  sweeping  dispositions  of  the  wife ;  but  the  case 
was  clearly  overruled  in  Essex  v.  Atkins,  (14  Vesey,  542.) 
^n  the  doctrine,  that  if  the  wife  acts  freely,  she  can  bind  her 
separate  property,  without  the  assent  of  the  trustees,  unless 
the  instrument  giving  her  the  property  render  that  assent 
necessary . 

87 


106 


CASES  IiN  CHANCERY 


181 /. 


WETHO.  EPIS. 
CHURCH 

v. 
JAQUES. 


107] 


Under  such  restrictions,  and  amidst  such  confusion  ana 
alternation  of  authority,  stood  the  disposing  power  of  the 
wife  when  Lord  Eldon  succeeded  to  the  great  seal.  I  do 
not  intend  to  fatigue  myself  with  entering  minutely  into  the 
consideration  of  all  the  dubious  and  contradictory  cases  and 
opinions  to  be  found  since  that  time,  and  shall  notice  only  ? 
few  of  tie  most  material  and  prominent  decisions.  The  law 
of  the  Court  will  be  found  to  be  ultimately  settled,  that  the 
terms  of  the  instrument  are  to  govern,  and  the  intention  of 
the  settlement,  with  its  restrictions,  is  to  prevail. 

In  Sperling  v.  Rochfort,  (8  Vesey,  164.)  there  was  a  bill 
by  husband  and  wife  against  trustees,  to  be  permitted  to  give 
up  her  interest  for  life  in  a  trust  fund  ;  but  as  the  estate  was 
not  settled  to  her  separate  use,  the  question  on  the  extent 
of  the  wife's  power  over  her  separate  estate  secured  by 
a  settlement,  did  not  arise.  The  chancellor,  however,  took 
occasion  to  observe,  that  upon  all  the  cases  together  in  respect 
to  the  wife's  power,  it  was  impossible  to  know  the  result,  and 
that  those  before  Lord  HtirdwicJce's  time  went  very  much  to 
the  extent,  that  to  all  intents,  as  to  separate  property,  the 
wife  was  to  be  considered  a  feme  sole.  In  Hulme  v.  Tenant, 
the  bond  was  nothing  like  the  execution  of  a  power,  and  yet 
Lord  Thurlow  held  it  a  sufficient  indication  of  the  wife's  in- 
tention to  bind  *her.  So,  in  Pybus  v.  Smith,  the  property 
was  guarded  by  those  terms  which  are  thrown  into  the  settle- 
ment for  her  protection,  and  yet  Lord  Thurlow  most  reluc- 
tantly allowed  the  wife's  disposition  for  the  benefit  of  her 
husband's  creditors.  There  was  the  same  reluctance,  but  the 
same  decision,  in  Ellis  v.  Atkinson. 

In  such  strong  language  did  his  lordship  expose  the  in- 
justice and  unreasonableness  of  the  decisions  of  Lord  Thur- 
low ;  and  he  added,  that  though  he  could  not  reconcile  all 
that  was  said  by  Lord  Rossi yn,  in  Whistler  v.  Newman,  to 
former  cases,  he  wished  the  law  might  turn  out  for  the  pro- 
tection of  married  women,  to  the  extent  in  which  it  is  there 
represented. 

In  Rich  v.  Cockell,  (9  Vesey,  369.)  stock  was  settled  in 
trust  to  pay  the  proceeds  for  the  sole  and  separate  use  of  the 
wife  as  she  should  direct,  and  that  her  receipt  was  to  be  a 
sufficient  discharge  to  the  trustee.  The  power  of  disposition, 
whether  by  deed,  will,  or  other  writing,  was  not  determined 
in  that  case ;  and  Lord  Eldon  said,  that  it  was  settled,  in 
Ftttiplace  v.  Gorges,  (1  Vesey,  jun.  46.  3  Bro.  8.)  that  the 
wife  had  a  power  of  disposition  by  will,  as  incident  to  such 
an  interest,  though  as  to  other  property  she  cannot  make  a 
will  without  her  husband's  assent.  He  thought  she  might 
have  a  power  to  dispose  by  an  instrument  not  amounting  to 
a  will.  He  did  not  specify  what  other  instrument  would  be 
83 


CASES  IN  CHANCERY.  101 

sufficient,  though  a  gift  to  the  husband  could  not  be  inferred        1817. 
without  clear  evidence.     The  learned  counsel  insisted,  that  v^*-^~^_, 
the  Court  would,  at  least,  require  some  declaration  in  writing.  METHO.  EPIS 
Again,  in  Jones  v.  Harris,  (9  Vesey,  497.)  Lord  Eldon  con-      CHURCH 
sidered  it  to  be  an  open  question,  and  one  doubtful,  and  de-       JAQUKS 
serving  of  a  very  full  review,  whether  the  separate  property 
of  SL  feme  covert  might  be  charged  in  a  different  form  from 
that  prescribed  by  the  instrument,  on  the  ground  that  she 
was   to   be   considered,   to   all  intents   and  purposes,   as  a 
feme  sole. 

*h  v/ill  be  recollected,  that  the  settlement  in  the  case  before  [  *  108  ] 
me  prescribed  the  mode  of  disposition  to  be  by  deed  or  will, 
and  that  the  husband  has  set  up,  in  his  own  favor,  a  disposi- 
tion by  parol ;  I  have,  accordingly,  adopted  the  advice  given 
by  this  eminent  judge,  and  have  endeavored  to  give  "a  full 
review  "  of  the  cases ;  and  they  have  produced  an  entire  con- 
viction, in  my  mind,  that  such  a  parol  disposition,  or  any 
other  different  from  the  one  prescribed,  is,  and  ought  to  be, 
inadmissible. 

In  the  above  case,  there  was  nothing  said  about  a  power 
or  mode  of  disposition.  So,  in  Wagstaffv.  Smith,  (9  Vesey, 
520.)  there  was  the  like  settlement  of  dividends  of  stock  upon 
the  wife,  without  words  of  direction,  appointment,  control, 
or  restraint ;  and  the  master  of  the  rolls  held  the  power  of 
disposition  to  be  incident,  that  the  wife  might  make  such 
disposition  as  she  pleased,  and,  therefore,  her  assignment,  to 
secure  an  annuity  with  her  husband,  was  established. 

Sir  Wm.  Grant,  in  that  case,  observed,  that  there  were 
cases  in  which  the  question  was,  whether  the  absolute  prop- 
erty, including  a  power  of  disposition,  was  intended  to  be  given, 
or  whether  there  was  an  intention  to  limit  the  wife  to  a  per- 
sonal gift,  without  a  power  of  disposition.  The  principle  ad- 
mitted in  these  remarks,  that  the  intention  of  the  instrument 
of  settlement  is  to  prevail,  is  solid,  and  it  is  all  that  we  con- 
tend for ;  but  it  must  be  confessed,  that  the  cases  make  dis- 
tinctions on  this  point  too  refined  to  be  useful,  and  so  subtle  as 
to  be  dangerous.  Mr.  Sngden,  in  his  excellent  "  Treatise 
of  Powers"  (p.  114.)  complains  of  this  subtlety,  and  says  that 
it  is  almost  impossible  for  a  practitioner  to  advise  confidently 
on  any  case  where  the  very  words  have  not  received  a  judi- 
cial determination.  We  have  a  sample  of  this  species  of 
discrimination  in  Richards  v.  Chambers,  (10  Vesey,  580.) 
where  property  was  settled  in  trust  for  the  sole  and  sep- 
irate  use  of  the  wife  for  life,  and  if  she  survived  her  husband, 
then  to  her  ^absolutely ;  but  if  not,  then  as  she  by  deed  or  [  *  109] 
will  should  appoint.  She  executed  an  appointment  in  favor 
of  her  husband,  and  they  both  applied  to  the  Court  to  have 
it  confirmed  The  master  of  the  rolls  held  that  she  had  a 

VOL.  III.  12  89 


109 


CASES  IN  CHANCERY. 


1817.       contingent  interest,  in  the 


event  of  surviving  her 


MKTHO.  EPIS 
CHURCH 

v. 
JACQUES. 


[*  110] 


husband. 

which  she  could  not  give  up  while  in  a  state  of  coverture 
She  had  an  estate  for  life,  with  a  contingent  interest  in  fee 
and  a  power  to  dispose  of  that  interest,  by  deed  or  will.  He 
said,  "  that  the  wife,  while  sui  juris,  means  to  make  a  provision 
for  herself  in  the  event  of  her  surviving  her  husband.  Such  are 
the  terms  upon  which  alone  she  chooses  to  contract,  while 
in  a  condition  to  exercise  her  free  and  unbiased  judgment. 
She  wishes  to  put  that  out  of  her  reach,  and  secure  it  frorr 
the  effect  of  the  influence  and  solicitations  to  which  she  ma) 
be  afterwards  exposed.  Why  should  a  Court  of  equity,  pro- 
fessing to  watch  over  the  interests  of  married  women,  say  that 
a  woman  about  to  marry  should  not  be  allowed  to  secure  to 
herself  this  kind  of  protection,  arising  from  a  legal  incapacity 
to  act  ? "  "  The  husband  can  have  no  claim  of  right  to  her 
interest,  with  his  concurrence  created  for  her  benefit." 

It  appears  to  me,  that  this  reasoning  condemns  many  of 
the  cases  we  have  reviewed,  and  goes  to  sanction  all  that 
Lord  Alvanley  and  Lord  Rossyln  have  said  on  the  subject, 
and  to  bear  against  many  of  the  subsequent  decisions  of  this 
same  master  of  the  rolls. 

In  Parker  v.  White,  (11  Vesey,  209.)  the  subject  came 
again  before  Lord  Eldon,  and  was  much  discussed.  The 
chancellor  disclosed  the  impression  which  he  had  received, 
as  early  as  the  case  of  Whistler  v.  Newman;  for  he  says,  that 
he  then  thought  the  law  settled  by  the  cases  of  Ellis  v.  At- 
kinson, Pybus  v.  Smith,  Huhne  v.  Tenant,  Peacock  v.  Monk, 
&c. 

In  that  case,  an  estate  was  conveyed  in  trust,  for  the  use 
of  the  wife  for  life,  solely  and  separately,  free  of  her  husband, 
*&c.,  and  in  trust,  after  her  death,  to  such  persons  as  she 
should  by  will  appoint,  and  in  default  thereof,  she  had  an 
eventual  reversion  in  fee.  The  husband,  wife,  and  trustee, 
united  in  a  deed  conveying  her  life  estate,  and  the  husband 
and  wife,  afterwards,  levied  a  fine  of  the  estate,  and  she  de- 
vised it  to  the  purchaser.  On  a  bill  by  her  to  set  aside  these 
conveyances,  charging  a  want  of  consideration,  and  the  con- 
duct of  the  husband,  the  sale  was  established  as  to  her  life 
estate  and  reversionary  interest ;  but  her  will  was  set  aside. 
and  the  trustee  held  guilty  of  a  breach  of  trust. 

In  discussing  the  case,  Lord  Eldon  observed,  that  it  was 
extremely  important,  that  the  power  of  the  wife  over  her  sep- 
arate estate  should  be,  once  for  all,  well  decided,  and  that  his 
mind  ivas  in  great  distraction  upon  the  subject.  He  admitted 
that  Lord  Thurlow  felt' a  very  strong  inclination  to  control  the 
unlimited  power  of  the  wife,  and  that  his  reasoning,  in  Pybus 
V.  Smith,  was  unanswerable,  if  the  point  had  been  open.  He 
seemed  to  think,  that,  upon  true  principle,  if  the  settlement 
90 


CASES  IN  CHANCERY.  110 

made  the,  wife  so  far  a  feme  sole,  yet  that  the  nature  and  ex-        181* 
tent  of  her  capacity  ought  to  be  collected  from  the  terms  of  v^-v— ^^> 
the  instrument  from  which  she  derives  that  capacity.     It  is  to  METHO.  KIM* 
be  regretted,  that  his  lordship  did  not  feel  himself  at  liberty 
to  follow  such  a  plain  and  unanswerable  argument;  for  the       JAQUES 
wife,  in  that  case,  having  a  power  by  will  to  appoint  after  her 
death,  the  instrument  evidently  intended  that  she  should  ex- 
ercise her  power  over  that  part  of  her  interest  in  no  other  way  ; 
expressio  unius  est  exclusio  alterius.     Lord  Eldon  continued 
to  observe,  in  that  case,  that  informal  instruments,  and  acts 
of  different  sorts,  had  been  held  a  sufficient  evidence  of  the 
wife's  intention,  and  that  it  was  no  objection,  if  the  disposi- 
tion is  to  satisfy  the  debt  of  the  husband,  or  be  a  gift  to  him ; 
and  he  concluded,  that  the  decision  in    Whistler  v.  Newman 
was  inconsistent  with  all  the  declarations  of  the  Court,  for  a 
century. 

*With  the  highest  respect  for  the  learning  of  Lord  Eldon,  [  *  1 1  I J 
1  have  not  been  able  to  perceive  sufficient  evidence  of  the 
historical  accuracy  of  some  of  these  dicta.  I  do  not  know 
in  what  case  the  wife's  disposition  of  her  separate  property 
was  admitted,  where  there  was  not  some  pretty  formal  and 
authentic  evidence  of  her  intention ;  and  the  decision  of 
Lord  Rosslyn  was  not  such  a  lawless  departure  from  all 
precedent.  The  wife,  in  the  case  he  alluded  to,  had  a  mode 
prescribed,  as  to  the  disposition  of  the  stock  after  her  death, 
viz.  by  will ;  and  yet  she  sold  the  whole  at  once,  for  the 
benefit  of  her  husband.  This  was,  indeed,  contrary  tc 
Newman  v.  Cartony ;  but  that  case  had  been  overruled  by 
Socket  v.  Wray.  Lord  Eldon  uniformly  admits  the  true 
principle  to  be  with  Lord  Rosslyn,  and  that  Lord  Thurlow 
always  thought  so,  and  that  the  point  was  unsettled,  confused, 
and  distracting.  Why,  then,  may  we  not  .decide  according 
to  sound  principle,  and  place  the  rights  of  the  wife  on  a  safe 
and  durable  foundation  ? 

In  a  series  of  cases  decided  by  Sir  Wm.  Grant,  the  doc- 
trine has  been  maintained,  that  the  wife  had  a  disposing 
power  over  her  separate  property,  without  examination,  and 
without  the  assent  of  trustees,  when  the  instrument  of  settle- 
ment did  not  restrain  her,  and  that  the  power  extended  as 
well  to  her  reversionary  interest  as  to  that  in  possession. 
But  in  some  of  these  cases,  I  apprehend,  the  doctrine  has 
been  applied,  when  a  fair  construction  of  the  instrument  did 
not  seem  to  warrant  it ;  and  the  decisions  of  that  very  able 
and  enlightened  judge  appear  to  me  to  be  a  little  inconsistent 
with  each  other,  or  to  be  founded  on  distinctions  not  easily 
to  be  perceived.  Thus,  in  Witts  v.  Daivhins,  (12  Vesey,  501 .) 
the  trust  was  to  pay  the  profits  of  land  to  her  appointment, 

91 


Ill 


CASES  IN  CHANCERY 


1817.  from  time  to  t:~ne;  yet  she  was  allowed  to  make  a  sweeping 
^^-^-*^/  appointment,  by  sale,  at  once,  of  her  whole  life  interest.  So, 
METHO.  EPJS.  in  Sturgis  v.  Corp,  (13  Vesey,  190.)  there  was  a  trust  to  ?ay 
CHURCH  and  apply  the  dividends  of  stock  into  her  proper  hands,  tor 
JAQUES.  her  *separate  use,  after  the  death  of  A.,  and  she  was  allowed 
f  *  112]  to  sell  this  reversionary  interest  in  the  lifetime  of  A.  This 
was,  to  all  appearance,  a  mere  personal  interest,  over  which 
no  such  power  existed ;  and  so  Sir  Wm.  Grant  had  held,  in 
Hovey  v.  Blakeman,  cited  by  him  in  Wagstaffv.  Smith.  (9 
Vesey,  524.)  The  two  decisions  are  irreconcilable  ;  and  Mr. 
Sugden  thinks,  that  if  Hovey  v.  Blakeman  had  been  recon- 
sidered, the  decisions  would  have  been  otherwise.  I  think, 
with  that  writer,  that  one  of  the  cases  was  erroneously 
decided;  but  I  should  differ  from  him  in  the  selection  of  the 
case.  Again,  in  Brown  v.  Like  (14  Vesey,  302.)  there  was 
a  trust  to  pay  dividends  to  the  wife  for  life,  for  her  separate 
use,  and  her  receipts,  from  time  to  time,  to  be  good ;  yet  her 
sweeping  power  of  appointment  was  established.  In  Heatly 
v.  Thomas,  (15  Vesey,  596.)  there  was  a  like  trust,  with  a 
special  power  to  dispose  of  the  principal  by  will,  and  yet  her 
bond  was  enforced  against  her  separate  estate.  The  like  de- 
cision was  made  in  Bullpin  v.  Clarke,  (17  Vesey,  365.) 
where  the  trust  was  to  pay  the  rents  into  her  hands,  or  as 
she  should  appoint,  and  they  were  held  bound  to  a  creditor 
in  satisfaction  of  her  note,  though  the  note  had  no  reference 
to  her  settled  property,  and  was  not,  by  any  reasonable 
intendment,  an  appointment  under  the  power.  But  in  Lee 
v.  Muggeridge,  (1  Vesey  and  Beame,  118.)  where  the  trust 
was  to  pay  the  rents,  as  the  wife  should  by  writing  direct, 
during  the  joint  lives  of  her  and  her  husband,  and  to  her  use 
in  fee,  if  she  should  survive  him,  and  if  he  survived  her,  to 
the  use  of  such  persons  as  she  should  by  will  direct,  and  no 
power  of  disposition  over  it,  during  the  coverture,  was 
mentioned,  the  master  of  the  rolls  held,  that  the  income 
only,  and  not  the  capital  of  her  separate  estate,  could  be 
bound  by  the  bond. 

The  last  case  I  shall  mention  is  that  of  Francis  v.  fVig- 
zell,  (1  Haddock's  Ch.  Rep.  258.)  which  arose  on  a  bill  for 
a  specific  performance  of  an  agreement  of  husband  and 
[  *  1  3  ]  *wife  to  sell,  she  having  separate  property.  I  cite  the  case 
only  for  the  opinion  of  the  vice-chancellor,  in  which  he  lays 
down  this  proposition  ;  that  "  a  feme  covert,  having  separate 
property  to  her  own  use,  may,  generally  speaking,  dispose  of 
it  as  a  feme  sole ;  but  if  the  instrument  by  which  she  acquires 
it,  prescribes  any  particular  mode  by  which  she  must  part 
with  it,  her  disposition  of  the  property  must  be  according  tc 
the  terms  of  such  instrument."  Now,  this  declaration,  if  it  be 
92 


CASES  IN  CHANCERY.  113 

worth  any  thing,  brings  the  point  back  again  to  the  doctrine        1317. 
of  Lord  Ahantey.     Sit  modus  lasso  viarum.  v^^-v^^^ 

I  apprehend,  we  may  conclude,  (though  I  certainly  do  it  METHO.  EPI. 
with  unfeigned  diffidence,  considering  how  great  talents  and      CHURCH 
learning,  by  a  succession  of  distinguished  men,  have  been       JAQUKS 
exhausted  on  the  subject,)  that  the  English  decisions  are  so 
floating   and   contradictory  as   to   leave   us   the   liberty   of 
adopting  the  true  principle  of  these  settlements.     Instead  of 
holding  that  the  wife  is  a  feme  sole,  to  all  intents  and  purposes, 
as  to  her  separate  property,  she  ought  only  to  be  deemed  a     A  feme  covert, 
feme  sole,  sub  modo,  or  to  the  extent  of  the  power  clearly  jj^h  ^'parale 
given  by  the  settlement.     Instead  of  maintaining  that  she  property,  is  to 
has  an   absolute  power  of  disposition,  unless  specially  re-  jl^^l^ihe 
strained  by  the  instrument,  the  converse  of  the  proposition  extent  only  of 
would  be  more  correct,  that  she  has  no  power  but  what  is  l^er^by'  The 
specially  given,  and  to  be  exercised  only  in   the  mode  pre-  marriage    set- 
scribed,  if  any  such  there  be.     Her  incapacity   is  general ;  power''  of  dis- 
and  the  exception  is  to  be  taken  strictly,  and  to  be  shown  in  position  is  not 
every  case,  because   it   is  against   the   general   policy  and  ^J°,^  to  i"e 
immemorial  doctrine  of  law.     These   very  settlements  are  exercised     M- 
intended  to   protect   her   weakness   against   her   husband's  ^ode"°  prcscri- 
power,  and  her  maintenance  against  his  dissipation.     It  is  a  bed  in  the  set- 
protection  which  this  Court  allows  her  to  assume,  *or  her       [*114] 
friends  to  give,  and  it  ought  not  to  be  rendered  illusory.  tiement.    if  she 

._..        i     &   •  i  i       11     i  •  •          "as  a  power  of 

1  he  doctrine  runs  through  all  the  cases,  that  the  intention  appointment  by 
of  the  settlement  is  to  govern,  and  that  it  must  be  collected  Wltt>  .sh.e, caimot 

f  i  ,.    ,       •  TTTI          •  appoint  by  dear, 

from  the  terms  of  the  instrument.     When  it  says  she  may  if  she  has   a 

appoint  by  will,  it  does  not  mean  that  she   may  likewise  P°wer   to   aP; 

•        i    J    i        ,  ,          .  .       ,  -iii-      poult  by    deed, 

appoint  by  deed :  when  it  permits  her  to  appoint  by  deed,  it  the  giving  .1 
cannot  mean,  that  giving  a  bond,  or  note,  or  a  parol  promise,  bond'  °.r  note> 

.  .  _    '  '    .          r  .  '   or  parol   prom- 

without  relerence  to  the  property,  or  making  a  parol  gift,  is  ise,  without  ref- 
such  an  appointment.  So,  when  it  says  that  she  is  to  re-  erence  to  the 

r  i  i        •  /.  J,  •       property,        01 

ceive  trom  her  trustee  the  income  of  her  property,  as  it,  making  a  parol 
from  time  to  time,  may  grow  due,  it  does  not  mean  that  she  gift  ofit, isnoi 

.    .      '.       J   <p.  r-      11  •  suc" an aPP°'nt- 

may,   by  anticipation,  dispose  at  once  of  all  that  income,  ment. 

Such  a  latitude  of  construction  is  not  only  unauthorized  by  .  So'  wh.ere  ll 

,.,.  /•    i  i  i      ls  saic*  m  l'ie 

the  terms,  but  it  defeats  the  policy  of  the  settlement,  by  settlement,  that 

withdrawing  from  the  wife  the  protection  it  intended  to  give  sh?  '%  to  ,re' 

i  T»     i  i-fi-  i-i  ceive  from  her 

her.  rerhaps,  we  may  say,  that  if  the  instrument  be  silent  trustee  the  in- 
as  to  the  mode  of  exercising  the  power  of  appointment  or  c°™eertof  -J1" 
disposition,  it  intended  to  leave  it  at  large,  to  the  discretion  may,  from  time 
and  necessities  of  the  wife ;  and  this  is  the  most  that  can  be  IjVThe'ha^no 

inferred.  power,    by   an- 

There  being,  in  the  present  case,  a  clear  mode  of  ap-  H^fl™',,, 

.  •  1          l         •  iii*"  i  3atJj  d.1  OIK  t) 

pomtment  prescribed,  it  would  be  unjust,  and  contrary  to  of  all  the  in 
the  settlement,  to  allow  the  defendant,  who  was  a  party  to  come' 
the  instrument,  to  set  up  any  parol  confession  or  agreement 

93 


1  14  CASES  IN  CHANCERY. 


1817.       °f  ^ie   wife)  as  a  Ml6   to   her  property:   the  exception  la 
v^^-x^^-^x  consequently  overruled,  (a) 
METHO.  Ens.  Exception  overruled. 

CHURCH 

JAQUES.  ^Thirteenth  exception.     That  the  master  has  not  allowed 

[*115J       to  ^ie    defendant  213  dollars  and  15  cents,  paid  for  the 
funeral  expenses  of  his  wife. 

If  a  feme  co-  THE  CHANCELLOR.  The  will  of  Mrs.  Jaques  provided 
separate  eTtf  te*  ^or  tne  Pavment  °f  her  funeral  expenses  out  of  her  estate  ; 
secured  by  set-  and  without  such  a  provision,  I  admit,  the  husband  must 
vTdeT'by  Pher  have  borne  this  charge-  (Bertie  v.  Chesterfield,  9  Mod.  31.) 

will  for  the  pay-  -p,  •  11  j 

ment  of  her  fu-  Exception  allowed. 

neral  expenses, 

not  to  be  charg-       Fourteenth  exception.     That  the  master  has  not  allowed 

ed  with  them  ;  to  the  defendant  the  several  sums  appearing,  by  a  certain 

such   provision  exhibit  marked  No.  1,  produced  by  the  plaintiffs,   to  have 

had  been  made,  been  paid,  and  amounting,  in  the  whole,  to  9,913  dollars, 

44  cents,  of  which  sum  6,213  dollars,  14  cents,  is  stated  to 

have  been  paid  for  houses  formerly  belonging  to  Christian 

M.  Heyle. 

THE  CHANCELLOR.  It  is  impossible  to  allow  these  dis- 
charges without  palpable  injustice.  They  are  generally  so 
vague,  without  saying  to  whom  or  for  what,  that  they  are 
not  the  proper  subject  of  allowance,  in  any  case,  without 
further  proof.  A  party  is  never  allowed  for  any  thing  in 
account,  under  the  head  of  general  expenses,  without  naming 
the  particulars  ;  for  it  would  be  impossible,  in  that  way, 
to  guard  against  error,  double  charges,  and  imposition. 
(Wyatt's  P.  R.  4.  1  Eq.  Cas.  Abr.  11.  pi.  12.)  The  de- 
fendant is  not  charged  on  the  foot  of  this  paper,  but  on  the 
foot,  essentially,  of  his  answers  and  receipts,  and  other  proof, 
and  the  reference  to  it  by  the  master  was  altogether  unne- 
cessary. The  paper  is  some  loose  and  random  charge  of  dis- 
f  *  116  1  bursements,  without  accuracy  or  consistency.  The  *money 
paid  for  houses  formerly  belonging  to  Heyle,  is  here  stated 

(a.)  Vide  the  case  of  Ewing  v.  Smith,  (3  Desausure's  Rep.  417.)  in  which 
the  Court  of  Appeals  in  South  Carolina  decided,  after  a  very  full  discussion 
and  consideration,  that  Lord  Thurloic's  doctrine  was  not  correct,  and  that  a 
feme  covert,  in  respect  to  her  separate  property,  was  not,  to  all  intents  and 
purposes,  a  feme  sole  ;  that  such  a  principle  would  defeat  the  object  of  the 
settlement,  and  the  security  of  the  wife  ;  that  her  power  of  disposition  was 
not  incidental  to  her  separate  property,  but  derived  entirely  from  the  author- 
ity contained  in  the  settlement,  and  that  the  power  of  appointment  must  be 
clearly  given  and  the  mode  prescribed  strictly  pursued.  The  contrary  opin- 
ion, however,  was  maintained  by  the  chancellor  Desausure,  in  an  able  and 
learned  argument  delivered  by  him  in  the  cause.  Vide,  also,  Jackson  v.  Hob 
house,  2  Merivale's  Hep.  483. 

94 


CASES  IN  CHANCERY.  116 

at  6,213  dollars,  15  cents,  whereas  the  answer  admits  it  to        1317. 
have  been  8,026  dollars,  97  cents.     It  is  probable  that  many  ^*^^~^s 
of  the  items  here  mentioned  have  already  been  allowed,  when  METHO.  EPJS. 
they  were    duly  understood  and  explained.     Besides,   why 
should  the  defendant  have  credit  for  6,213  dollars,  15  cents, 
paid  for  Heijlt's  property,  when  the  payments,  as  far  as  any      A  party  in  an 
were   made,    were    with    the    proper   moneys    of  his   wife  ?  ^master,  under 
Nothing  can  be  more  obviously  unjust  and  groundless  than  the  head  of  gen- 
the  claim  of  such  an  allowance.     He  admits,  in  his  answer,  ^  toTrSlow* 
that  he  purchased,  on  the  sale  under  Hcyle's  mortgage,  one  ed    any  thing, 
lot  for  4,500  dollars,  and  another  lot  for   1,500  dollars,  and  ^  °huel  partiVu- 
that  he   did  not  pay  a  cent  for  them,  but  the  price  was  lars. 
discounted  against  so  much   money  due  on  the  mortgage 
and  judgment  of  his  wife.     Yet  in  this  exception  the  de- 
fendant charges    the  6,213   dollars,   15  cents,  as   so  much 
money  paid  for  that  property.     This  single  fact  demonstrates 
the  obvious  falsehood  and  injustice  of  the  claim  thus  put 
forward.     It  throws  discredit  on  all  the  items. 

The   defendant   had    already  been    allowed    such   of  his      Where  ,  one 

...  J     ,  ,  r  i  Party   produces 

disbursements  as  were  supported  by  prool,  and  as  to  many  a     paper,    to 
charges,  he  has  had  the  benefit  of  a  most  liberal  indulgence,  charge  the 

.         other     nis    on- 

and,  perhaps,  a  great  deal  too  much,  to  be  consistent  with  ponent  may  use 
the  demands  of  a  severe  and  exact  justice.  ll.  m  his,  dur 

,-.          .  ...    ,  i  i    .         i  .1  charge:    but  it 

One  instance  more  will  be  produced  to  show  the  utter  does  not  follow 
want  of  truth  and  justice  in  these  claims.  The  claim  of  1^^^,^ 
300  dollars,  as  cash  paid  to  Bazen,  under  date  of  the  1st  same  credit. 
of  May,  1807,  has  been  allowed  to  the  defendant.  (See  m  th  dis 
schedule  C.,  annexed  to  the  master's  report,  No.  158.)  charges  are  in- 
There  is  no  doubt  of  the  general  rule  that  when  one  party  ^e^hfstances1 
exhibits  a  paper,  in  proof,  to  charge  his  opponent,  his  op-  and  are  desti- 
ponent  is  entitled  to  use  it  in  his  discharge.  But  it  does  Me  of  precision 

„  ,,  •  •  i     i  i-       and  certainty  as 

not  lollow,  that  each   part  is  entitled  to   the  same  credit,  to    place    and 
The  charge  may  be  so  clear  and  specific  as  to  be  conclusive,  circumstances, 

,  .,       ,     °  ,.      .J  .  i    /•       •  &c..  the   whole 

while  the  discharge  is  so  loose  and  detective  as  to  deserve  may  be  reject- 
*no  credit.     We  have  seen  that  those  discharges  are  inac-  ed> 
curate  in  some  instances  ;   that  they  have  no  precision   or 
certainty,  as  to  place  or  circumstance  ;  that  we  have  evidence 
of  the  allowance  of  part  on  other  proof,  and  of  the  positive 
injustice  of  other  parts  ;  and  we  are  justified,  and   bound, 
upon  all  sound  principles,  to  reject  the  whole. 

The  whole  exception  is,  accordingly,  disallowed. 

A  question  will  arise  as  to  the  disposition  of  the  costs      Costs,  on  ex- 

?i  i-  mi         11  /•          i     •  i       i  ^     ceptions    to    a 

upon  these  exceptions.     The  allowance  of  costs  is,  no  doubt,  master's  report, 
discretionary  in  this,  as  in  other  cases;  but,  I  think,  it  will,  are  allowed  to 

.  ill  •„    i  i  i    '  r  11  ^i  i       eacn    Par'y   on 

upon  the  whole,  be  most  equitable  and  just  to  lollow  the  rule  the   exceptions 
which  I  have  adopted  in  other  cases,  arising  upon  exceptions  j"  which  1hey 

/-i       r   i  /-»?       r»  *  A      ~,~,     rVr    j  /-IT      TJ          llave       resrec- 

to  reports,  (1   Johns.    Ch.  Rep.  44.  77.  2  Johns.   Ch.  Hep.  tivel/ 
223.)  and  allow  to  each  party  the  costs  on  the  exceptions  in  ed- 

95 


-       r  ^ 


.17  CASES  IN  CHANCERY. 

1817.       which  he  has  been  successful.     The  idea  that  a  party  oughl 

v^^-x^**^  not  to  pay  costs  for  the  mistake  of  a  master,  has  been  so 

MKTHO.  Ens.  often  controlled,  on   this  very  subject  of  exceptions,  as   to 

CHURCH       form  no  safe  and  certain  guide.     We  have  a  statute  of  this 

JAQUES.       state,  (laws  of  N.   Y.  sess.  38.  ch.  96.  $  13.)  which  allows 

The  mistake  costs  on  reversal  of  a  judgment  in  error ;  and  I  perceive,  that 

not  ifke'thefe*  the  Court  of  Errors,  on  the  reversal  of  decrees  of  this  Court, 

ror  of  a  judge,  awards  costs  of  the  appeal  to  the  appellant.     However  we 

and  is  no  rule  .   ,1  r      I-  r  '     i  j.    T  ^i  •    i 

as  to  costs.  mav  regret  the  application  01  costs  to  such  cases,  yet,  1  think, 
it  would  be  carrying  our  scruples  to  a  great  length,  to  con- 
sider every  report,  in  every  case,  of  a  master,  as  partaking  so 
much  of  the  nature  of  a  judicial  determination,  that  the 
party  defending  its  errors,  under  exceptions,  ought  to  be 
protected  from  costs.  This  is,  certainly,  not  the  established 
doctrine  of  the  Court. 

Thus,  in  the  case  of  The  Corporation  of  Burford  v. 
Lenthall  and  others.  (2  Aik.  551.)  there  were  exceptions  to 
a  decree  of  the  defendants,  as  commissioners  of  charitable 
uses,  and  of  these,  thirty-nine  were  allowed,  and  four  dis- 
allowed. Lord  Ch.  Hardwicke  took  time  to  consider  the 
question  of  costs,  and  gave  to  the  exceptants  costs  upon 

[*  118]  *those  exceptions  in  which  they  had  prevailed,  and  to  the 
respondents  costs  in  those  where  they  had  prevailed.  This 
is  a  strong  decision,  and  perfectly  applicable,  in  principle,  to 
ine  present  case.  The  decision  of  the  commissioners  was 
much  more  solemn  and  judicial  than  that  of  a  master's  report. 
The  statute  of  43  Eliz.  ch.  4,  which  authorized  the  ap- 
pointment of  commissioners  to  inquire  of  the  gift  of  lands 
and  goods  to  charitable  uses,  directed  that  their  orders,  judg- 
ments and  decrees  should  be  certified  into  chancery ;  and 
that  Court  was  directed  to  take  such  order  for  the  due 
execution  thereof  as  should  seem  fit.  The  statute  further 
provided,  that  any  person  aggrieved  by  any  such  decree, 
might  apply  to  the  Court  of  Chancery,  and  the  Court  was  to 
annul,  alter,  or  enlarge  the  order,  judgment  and  decree,  ac- 
cording to  equity,  and  award  costs  of  suits,  in  its  discretion, 
against  such  persons  as  should  complain  without  just  cause. 
This  is  all  the  statute  provision  in  the  case ;  yet  Lord 
Hardwicke  adopted  the  rule  of  costs  which  I  have  mentioned, 
and  which  he  found  to  be  according  to  the  established 
practice  of  the  Court. 

There  are  many  cases  of  reference  for  mere  irregularity, 
where  a  party  has  not  been  allowed  costs  for  a  successful 
exception  to  the  report;  yet  even  there  the  chancellor  held. 
(3Atk.  234.  anon.}  that  they  might,  in  special  cases,  be  allowed, 
notwithstanding  the  master  had  reported  in  favor  of  the  other 
party.  The  case  of  Bromfield  v.  Chicester,  (Amb.  464.)  is 
another  strong  instance  in  which  costs  have  been  allowed  ta 
96 


CASES  IN  CHANCERY.  118 

a  party  prevailing  in   his   exception   to   a  master's  report.        1817. 
Lord  Northington  allowed  costs  here,  after  the   point  had  •^*-*^^-+^/ 
been  twice  discussed,  and  the  cases  respecting  references  for  METHO.  EPIS 
irregularities  cited  and  reviewed ;  and  he  insisted  that  the 
allowance  was  just  in  that  case,  and  that  it  was  a  matter      JAQ-ES. 
resting  in  discretion. 

I  know  of  no  instance  which  more  strikingly  illustrates 
this    doctrine   than    the    order   of  Lord   Nottingham,  (vide 
Beame's  Orders,  p.  261.)  making  even  the  party  prevailing 
*on  exceptions  to  a  master's  report,  pay  costs  in  certain       [  *  1 1 9  ] 
cases. 

I  might,  perhaps,  properly  enough,  refuse  costs  on  either 
side  in  this  case  ;  but  to  make  the  defendant  pay  costs  where 
his  exception  was  not  well  taken,  and  not  to  allow  him  costs 
when  he  prevailed,  would  appear  to  me  to  be  an  unequal 
rule.  The  exceptions,  in  this  case,  were  generally  of  grave 
import,  and  founded  on  plausible  grounds ;  and  I  have  con- 
cluded it  would  operate  most  justly  to  adopt  the  rule  which 
I  formerly  declared  between  these  very  parties  in  this  same 
case  ;  and  I  do  it  the  more  readily,  as  I  find  that  Lord  Redes- 
dale  (1  Sch.  Sf  Lef.  241.)  established  it  as  a  general  rule 
of  his  Court,  that  where  some  exceptions  were  allowed,  and 
others  were  disallowed,  on  a  reference  to  a  master,  the  plain- 
tiff was  to  have  the  costs  of  the  exceptions  disallowed,  and 
the  balance  to  be  struck  and  paid  by  the  party  from  whom  it 
should  appear  to  be  due.  (o) 

A  decretal  order  was,  thereupon,  entered,  that  the  2d,  6th, 
7th,  10th,  and  13th  exceptions,  together  with  so  much  of  the 
8th  exception  as  related  to  the  sum  of  250  dollars,  therein 
mentioned,  and  so  much  of  the  12th  exception  as  related  to 
the  sum  of  75  dollars,  therein  mentioned,  be  allowed  as  well 
taken  ;  and  that  the  residue  of  the  said  exceptions,  and  parts 
of  exceptions,  be  disallowed.  That  the  defendant,  John  D. 
Jacjues,  be  allowed  his  costs  for  the  said  2d,  6th,  7th,  10th, 
and  13th  exceptions,  and  that  the  plaintiffs  be  allowed  their 
costs  for  the  residue  of  the  said  exceptions,  except  the  8th  and 
12th  ;  *and  that  for  these  two  last  exceptions,  neither  party  [  *  120  ] 
be  allowed  costs  as  against  the  other ;  and  that  the  costs  to 
be  taxed  for  the  defendants  be  discounted  from  the  costs  to 
be  taxed  in  favor  of  the  plaintiffs ;  and  that  the  report  be  re- 
committed to  the  master  to  be  amended,  in  conformity  to 
this  decretal  order. 

fa)  In  the  case  of  Dawson  v.  Busk,  (2  Maddock's  Ch.  Rep.  184.)  there 
•were  ten  exceptions  taken  to  the  answer,  and  the  master  reported  the  answer 
sufficient.  On  exceptions  being  taken  to  his  report,  some  of  them  were  al- 
lowed, and  some  disallowed ;  and  the  vice-chancellor,  after  reviewing  the 
authorities,  ordered  the  deposit,  which  had  been  made  with  the  register,  on 
taking  the  exceptions  to  the  report,  to  be  divided ;  and  this  appeared  to  have 
keen  the  practice  in  several  cases  which  were  cited. 
VOL.  III.  13  97 


120 


CASES  IN  CHANCERY. 


1817. 


HARROW 


November  n 


[*121  ] 


BARROW  and  others,    Assignees   of  PRIOR,  against 
J.  RHINELANDER. 

[Reversed,  IV  Johns.  548.] 

A  decretal  order  of  reference  to  a  master  to  state  the  account  between 
the  parties,  was  made  in  September,  1815,  and  the  parties  appeared, 
from  time  to  time,  before  the  master  until  the  16th  of  October,  1817, 
when  they  were  nearly  ready  fur  a  final  hearing  before  him  ;  and 
then  the  defendant  presented  an  appeal  from  the  decretal  order, 
dated  the  16th  of  October,  1817.  On  petition  and  motion  of  the  plain- 
tiff, the  Court  ordered  the  master  to  proceed  in  taking  the  account, 
and  to  complete  and  file  his  report,  notwithstanding  the  appeal. 

THE  petition  of  the  plaintiffs  stated,  that  this  suit  had  long 
been  pending,  and  that  on  the  29th  of  September,  1815,  the 
Court  decreed,  (vol.  1.  p.  550.)  that  the  accounts  between  the 
plaintiff  and  the  bankrupt,  on  the  one  part,  and  the  defendant, 
on  the  other,  should  be  opened  from  the  29th  of  November, 
1790,  and  that  it  should  be  referred  to  a  master  to  state  the 
said  accounts,  according  to  certain  principles  and  directions 
in  the  decree  mentioned.  That  in  pursuance  of  such  decretal 
order,  James  A.  Hamilton,  one  of  the  masters  of  the  Court, 
proceeded  in  taking  and  stating  the  accounts.  That  the  ac- 
counts were  extensive,  and  somewhat  complicated,  involving 
many  large  sums  of  money,  and  some  questions  of  consider- 
able difficulty,  but  that  owing  to  concessions  and  admissions, 
almost  all  the  matters  of  any  considerable  moment,  in  number 
or  amount,  were  disposed  of  and  settled  by  the  solicitors  on 
each  side.  *That  such  admissions  were  reduced  to  writing, 
and  signed  by  the  respective  solicitors,  and  filed  with  the 
master  the  1st  of  May  last.  That  a  small  number  of  notes, 
bonds,  &c..  brought  in  question,  were  left  to  the  decision  of 
the  master,  and  all  the  matters  remaining  in  dispute  were  re- 
duced to  certain  specific  points.  That  the  plaintiffs  were 
thereupon  prepared  for  a  final  hearing  before  the  master,  on 
the  matters  not  disposed  of  as  aforesaid.  That  various  meet- 
ings of  the  parties  were  had,  when,  on  the  1st  of  September 
last,  at  a  meeting  of  the  parties  before  the  master,  and  when 
the  plaintiffs  were  ready  to  go  to  a  final  hearing,  the  defend- 
ant prayed  for  further  time  to  take  testimony,  and  the  de 
fendant's  counsel  then  appointed  and  agreed  on  the  23d  of 
September  last,  as  the  time  when  all  the  testimony  should  be 
taken  and  closed,  and  that  they  then  would  be  ready  to  go 
to  a  final  hearing  before  the  master,  and  the  respective  so- 
licitors subscribed  a  memorandum  to  that  effect,  on  the  minutes 
kept  by  the  master.  That  on  the  23d  of  September,  the 
counsel  for  the  plaintiffs  appeared,  and  the  final  hearing  was 
98 


CASES  IN  CHANCERY.  .  121 

adjourned  to  the  1st  of  October,  when  the  parties  met,  and        1817. 
on  the  representations  of  the  defendant's  solicitor  and  coun-  '^^— ^~^~s 
sel,  it  was  finally  agreed  that  further  time  be  allowed  the  de-      BARROW 
fendant  and  his  counsel,  until  the  16th  of  October,  that  time 
being  named  at  the  instance  of  the  solicitor  and  counsel  for 
the  defendant,  as  sufficiently  remote  for  a  full  preparation  by 
them.     That  on  the  16th  of  October,  the  parties  again  met 
before  the  master,  and  application  was  again  made,  on  the 
part  of  the  defendant,  for  an  indefinite  postponement  of  the 
final  hearing ;  but  the  master  denied  the  motion,  and  ordered 
on  the  argument,  when  the  solicitor  for  the  defendant  ten- 
dered an  appeal  from  the  decretal  order  of  the  29th  of  Sep- 
tember, 1815,  to  the  Court  for  the  Trial  of  Impeachments 
and  Correction  of  Errors,  which  appeal  was  dated  the  said 
16th  of  October.     That  from  a  full  and  perfect  view  of  the 
accounts,  so  far  as  the  same  have  been  agreed  to,  *or  admit-       [  *  122 
ted,  there  will  be  due  the  plaintiffs,  if  stated  up  to  the  present  , 

time,  20,000  dollars  and  upwards,  exclusive  of  all  sums  in 
controversy,  and  of  the  notes,  bonds  and  securities  still  unde- 
termined. Prayer,  that  the  plaintiffs  may  be  permitted  to 
proceed  in  the  taking  and  stating  their  said  account  before 
the  master,  and  that  the  defendant  may  be  ordered,  on  the 
completion  thereof,  to  bring  into  Court,  within  a  reasonable 
time,  the  sum  which  may  be  found  due,  or  that  he  may  be 
compelled,  within  a  reasonable  time,  to  give  security  for  what 
may  ultimately  be  adjudged  due  to  him. 

This  petition  was  sworn  to  by  one  of  the  plaintiffs. 

There  was  a  special  report  of  the  master  annexed  to  the 
petition,  stating  the  material  facts  set  forth  in  the  petition,  in 
respect  to  the  progress  of  the  cause  before  him 

H.  Bleecker,  for  the  petition. 

J.  V,  Henry,  contra.  He  read  an  affidavit  of  the  defend- 
ant, stating  that  his  answer  was  filed  on  the  29th  of  June, 
1805.  That  on  the  6th  of  June,  1814,  an  order  for  publica- 
tion was  entered.  That  by  an  agreement  before  the  hear- 
ing, the  plaintiffs  abandoned  all  claim  for  the  defendant's  not 
collecting  the  moneys  due  on  the  securities  for  money,  except 
as  to  those  in  the  agreement  mentioned,  and  that  the  defend- 
ant was  not  to  be  charged  with  moneys  on  securities,  the  payer 
of  which  was  insolvent  on  the  4th  of  July,  1801.  That  in 
the  course  of  the  proceedings  before  the  master,  the  plaintiffs, 
by  agreement,  abandoned  the  said  claim.  That  the  securities, 
which  the  plaintiffs  still  insist  the  defendant  ought  to  be 
charged  with,  amount  to  11,449  dollars,  10  cents,  besides  in- 
terest, though  the  defendant  has  never  received  any  money 
whatever  thereon.  That  be  has  several  material  witnesses, 

99 


123*  *  CASES  IN  CHANCERY. 

1817.       whose  testimony  he  has  not  been  able  to  procure,  for  wan 
v^*-^— «*_-    of  time,  though  he  has  been  busily  employed  for  the  purpose ; 
BARROW      that  *his  witnesses  reside  in  different  states.     That  he  is  will- 
ln&  to  Proceed  m  the  reference,  notwithstanding  the  appeal, 
provided  he  be  permitted  to  complete  the  examination  of  his 
witnesses. 

THE  CHANCELLOR.  This  case  presents  as  strong  an  in- 
stance of  the  abuse  of  the  right  of  appeal  as  can  well  be 
imagined.  It  would  seem,  from  the  offer  contained  in  the 
latter  part  of  the  defendant's  affidavit,  that  the  appeal  was 
interposed  merely  for  delay,  and  because  the  defendant  was 
not  indulged  in  a  further  and  unlimited  time  to  procure  his 
testimony.  After  a  long  and  tedious  discussion  before  the 
master,  and  when  the  cause  was  ready  for  a  final  hearing 
before  him,  the  defendant  interposed  his  appeal.  The  de- 
fendant was  led  to  appeal  from  the  decretal  order  for  a 
reference,  because  the  master  refused  a  further  adjournment. 
If  the  master  had  acted  improperly,  the  defendant  would 
have  had  relief,  on  application  to  this  Court,  on  the  coming 
in  of  the  report.  If  the  defendant  was  dissatisfied  with  the 
original  decretal  order,  he  ought  to  have  appealed  at  the 
time,  and  not  lain  by,  and  suffered  all  this  intermediate  delay, 
trouble,  and  expense.  If  the  appeal  was  to  operate  as  a 
suspension  of  further  proceedings  before  the  master,  and  the 
master  should  happen  to  die,  or  be  out  of  office,  before  the 
cause  could  be  heard  and  decided  in  the  Court  of  Errors,  all 
that  had  been  done  before  him  would  be  lost.  A  cause 
might  thus  be  protracted  through  whole  generations,  and 
until  the  patience  and  the  resources  of  suitors  had  become 
exhausted.  We  may  apply  to  this  case  the  observations  of 
Montesquieu.  On  en  voit  la  correction ;  metis  on  voit  encore 
les  abus  de  la  correction  meme. 

I  cannot  order  that  the  defendant  give  security  for  the 
amount  that  may  be  due,  because,  until  the  master's  report 
has  been  received  and  confirmed,  I  have  nothing  by  which 
*  124  ]  to  guide  my  judgment.  It  will  be  sufficient,  at  present,  *to 
grant  so  much  of  the  motion  as  to  allow  the  master  to  pro- 
ceed and  finish  his  report,  notwithstanding  the  appeal.  After 
the  report  is  made,  brought  into  Court,  and  confirmed,  it  will 
be  in  season  for  the  plaintiffs  to  make  further  application  for 
leave  to  proceed,  if  they  can  then  show  a  necessity  for  it. 

Order  accordingly,  that  the  master  proceed  in  the  refer 
ence  to  the  completion  and  filing  of  his  report,  (a) 

(a)  Vide  Messonnier  v.  Kauman,  ante,  p.  66. 

100 


CASES  IN  CHANCERY.  124 

1817. 

LlVINGSTOV 


LIVINGSTON  against  HUBBS  and  others. 

[Approved,  4  Bann.  &  A.  (TJ.  S.)  341.    Followed,  18  Blatchf.  (TJ.  S.)  122.    Referred  to, 
28  Miiin.  255.    See  2  Bann.  &  A.  (U.  S.)  257.] 

A  bill  of  review,  on  matter  of  fact,  is  not  allowed  to  be  filed,  unless  on 
oath  of  the  discovery  of  new  matter  or  evidence,  which  has  come  to 
light  since  the  decree,  or,  at  least,  since  publication,  and  which  could 
not  possibly  be  had,  or  used,  at  the  time  publication  passed. 

Newly-discovered  evidence,  which  goes  to  impeach  the  character  of 
witnesses  examined  in  the  original  suit,  or  of  cumulative  witnesses  to 
a  litigated  fact,  is  not  sufficient. 

The  matter  of  fact,  newly  discovered,  must  be  relevant,  and  materially 
affecting  the  ground  of  the  decree. 

A  bill  of  review  will  not  be  allowed,  unless  the  decree  has  been  per- 
formed by  the  party  seeking  the  review  ;  but  where  he  is  in  execu- 
tion for  the  non-payment  of  the  money  and  costs  awarded  to  be  paid 
by  him,  and  which  he  is  unable  to  pay,  it  seems  that  leave  to  file  a 
bill  of  review  will  not  be  denied,  on  the  mere  ground  of  non-per- 
formance of  the  decree. 

PETITION  of  the  defendant  Hubbs,  for  leave  to  file  a 
bill  of  review.  After  stating  the  substance  of  the  original 
bill  and  answer,  and  evidence  on  which  the  decree  was 
made,  (vide  S.  C.  vol.  2.  p.  512.)  the  defendant  stated, 
that  since  the  decree,  he  had  discovered  that  several  of  the 
witnesses  of  the  plaintiff,  who  had,  in  their  testimony, 
contradicted  the  statement  in  his  answer,  had  mistaken  the 
land  in  question,  and  had  testified  respecting  lands  adjoining 
*thereto,  or  had  confounded  it  with  the  adjoining  lands,  so  [  *  125 
that  their  evidence  was  irrelevant  ;  and  that,  by  the  fraud- 
ulent combination  of  the  plaintiff,  and  his  agent,  Paul  Sultz, 
several  other  of  the  witnesses  who  were  examined  had  been 
shown  a  different  tract  of  land  from  the  one  in  controversy, 
and  of  greatly  inferior  value  ;  that  W.  Kerr,  who  deposed 
that  he  was  a  commissioner  of  taxes,  and  had  not  assessed 
the  land  in  question  on  account  of  its  inferior  quality,  was 
never  a  commissioner  of  taxes,  but  had  been  convicted  of 
forgery  ;  and  that  from  the  certificate  of  the  clerk  of  the 
commissioners,  it  appeared  that  the  premises  in  question  had 
been  taxed  as  land  fit  for  cultivation  ;  and  that  other  of  the 
witnesses  examined  were  persons  of  bad  fame,  and  unworthy 
of  credit;  all  which  was  unknown  to  the  defendant  H., 
until  since  the  decree.  That  since  the  decree,  he  had  pro- 
cured the  tract  of  land  in  question  to  be  surveyed,  and  that 
several  respectable  and  intelligent  persons  had  visited  it,  and 
declared  it  to  be  as  represented  by  him  to  the  plaintiff.  That 
the  defendant  is  now  in  execution  for  250  dollars,  and  the 
costs  awarded  by  the  decree  That  the  ground  of  the  de- 
cree was,  that  the  land  had  been  represented  to  the  plaintiff 

101 


125  CASES  IN  CHANCER1. 

1817.       *°  be  °f  good  qualit}7  and  fit  for  cultivation,  when,  in  fact, 
>^r-^~*^  it  was  not. 

LIVINGSTON        Prayer  for  leave  to  bring  in  a  bill  of  review,  to  obtain  a 
HUBBS        reversal  or  modification  of  the  decree. 

Various  documents,  and  several  affidavits,  were  annexea 
to  the  petition.  Affidavits  on  the  part  of  the  plaintiff  were, 
also,  read,  in  opposition  to  the  motion. 

H.  J5/eecfcer,  /?wrr,  and  Bracket,  for  the  petition.  They 
cited  1  Ch.  Cos.  42,  43.  Mitf.  PL  66.  71.  78,  79.  4  Fewy, 
186.  211.  8  Vesey,  438. 465.  Bohun's  Ch.  382.  2  Freem. 
Rep.  172.  1  Fern.  117.  Cooper's  PL  89.  91.  1  Harris. 
Pr.  171.  1  Vesey,  435.  3  Burrow,  1771.  1  Bos.  fy 
Pull.  427.  2  Caines's  Rep.  224. 

[  *  126  !  *  Sampson  and  Mackay,  contra.      They  cited    1    Harris. 

Prac.  138,  139.  143.  187.     Wiser  v.  Blackly,  (2  Johns.  Ch. 
Rep.  488.) 

THE  CHANCELLOR.  The  question,  whether  the  repre- 
sentations of  the  defendant  Hubbs,  as  to  the  quality  of  the 
tract  of  land  in  Pennsylvania,  and  mentioned  in  the  plead- 
ings, were  true  or  false,  was  one  of  the  matters  of  fact,  in 
issue,  in  the  cause.  The  defendant  was  charged,  in  the  bill, 
with  gross  misrepresentations  on  that  point,  and  the  charge 
was  denied  in  the  answer,  and  put  at  issue.  The  defendant's 
attention  was  called  to  the  very  fact,  and  he  was  bound  to 
use  reasonable  diligence  in  bringing  forward  his  proof  on  that 
point.  The  necessity  of  a  reasonably  active  diligence,  in  the 
first  instance,  is  imposed  upon  parties,  and  a  bill  of  review  is 
not  to  be  sustained  merely  to  accumulate  testimony.  This  is 
the  clear  and  necessary  doctrine  of  the  Court.  (Youngs  v. 
Keighly,  16  Vesey,  398.)  The  rule  of  Lord  Bacon,  as 
declared  in  his  Ordinances,  No.  1,  (and  Lord  Eardwicke 
says  the  rule  has  never  been  departed  from,)  is,  that  a  bill  of 
review,  upon  matter  of  fact.,  must  be  upon  special  leave  of 
the  Court,  and  upon  oath  of  the  discovery  of  "  new  matter, 
or  evidence  which  hath  come  to  light  after  the  decree,  and  could 
not  possibly  be  had  or  used  at  the  time  when  the  decree  passed." 
If  the  party  might  have  used  the  new  proof  when  the  decree 
was  made,  it  is  not  a  sufficient  ground  for  a  bill  of  review. 

There  is  no  newly-discovered  evidence,  in  this  case,  but 
what  might  have  been  had,  with  ordinary  diligence,  in  the 
first  instance.  The  defendant  might  have  had  the  lands 
surveyed,  and  viewed,  and  located,  and  the  question  of  the 
assessment  and  payment  of  taxes  established,  as  well  before 
publication  passed  in  the  cause,  as  since  the  decree.  There 
never  was  a  more  lame  and  feeble  attempt  to  support  a  bil 
102 


CASES  IN  CHANCERY.  *127 

of  review,  on  the   ground  of    newly-discovered  evidence.        1817. 
Most  of  the  testimony  goes  to  the  credit  of  the  witnesses   ^^-^^-^.^ 
^examined  on   the  part  of  the  plaintiff;  but  the  credit  of     LIVINGSTON 
witnesses  is    not   to    be  impeached  after   the    hearing  and       HUBBS 
decree.     Such  applications  for  an  examination  to  the  credit 
of  a  witness  are  always  regarded  with   great  jealousy,  and 
they  are  to  be  made  before  the  hearing.     (  White  v.  Puss  ell, 
1  Vesey  and  Beame,  151.)     There  would  be  no  end  of  suits, 
if  the  indulgence  asked  for,  in  this  case,  was  to  be  permitted. 

The  nature  of  the  newly-discovered  evidence  must  be  dif- 
ferent from  that  of  the  mere  accumulation  of  witnesses  to  a 
litigated  fact.  In  Taylor  v.  Sharp,  (3  P.  Wms.  371.)  the 
lord  chancellor  spoke  of  such  new  matter  as  a  receipt,  re- 
lease, &c.,  and  observed,  that  unless  the  relief  was  confined 
to  such  new  matter,  it  might  be  used  for  vexation  and  oppres- 
sion, ^and  for  the  cause  never  to  be  at  rest;  and  in  a  case 
already  referred  to,  Lord  Eidon  observed,  that  a  party  was 
not,  indeed,  bound  to  know  every  thing  which  he  could  have 
discovered ;  for  instance,  he  might  not  be  held  bound  to  look 
into  a  box  for  instruments  which  no  human  prudence  would 
have  suggested.  The  language  of  these  cases  show  strongly 
the  nature  and  strictness  of  the  rule  as  to  newly-discovered 
proof. 

It  seems  not,  indeed,  to  be  requisite  that  the  new  matter 
should  have  come  to  the  party's  knowledge  after  the  decree, 
according  to  the  letter  of  Lord  Bacon's  rule.  It  is  sufficient 
if  it  be  discovered  subsequent  to  publication.  (Amh.  292. 
3  Atk.  26.) 

2.  But  it  must  be  a  matter  of  fact  materially  relevant  and 
pressing  upon  the  decree.  This  was  the  doctrine  in  Bennet 
v.  Lee,  (2  Atk.  529.)  in  Morris  v.  Le  Neve,  (3  Afk.  26.) 
and  in  Young  v.  Keighly.  The  facts  set  forth  in  this  case, 
as  newly  discovered,  do  not  appear  to  me  to  be  material  to 
the  merits  of  the  cause.  The  fraudulent  combination  between 
Baldwin  and  Hubbs,  to  impose  upon  the  plaintiff,  is  still 
equally  apparent.  Hubbs  was  acting  under  the  influence  of 
his  own  interest,  when  he  acted  as  ^arbitrator.  That  inter-  [  *  123  ] 
est  was  founded  on  his  previous  agreement  with  Baldwin, 
and  his  umpirage  was  founded  in  corruption.  The  purchase 
of  1 35  acres,  which  formed  part  of  the  tract  of  land  in  ques- 
tion, was  done  in  furtherance  of  the  same  fraudulent  combi- 
nation ;  and  I  think  the  weight  of  evidence  is  still  decisive, 
that  his  representations  of  the  quality  of  the  land  were  false 
and  fraudulent.  The  very  certificate  which  he  now  produ- 
ces from  George  Palmer,  shows  the  tract  of  land  to  be  almost 
worthless,  for  it  states  the  tract  to  be  on  the  side  and  top  of 
a  mountain :  that  about  one  third  part  may  be  cultivated,  and 
that  the  soil  is  thin.  The  other  two  thirds  would  seem  to  be 

103 


128  CASES  IN  CHANCERY. 

1817.  stones  and  worthless,  except  that  some  part  of  the  timber  might 
v^^-^^-^^x  do  for  sawing.  The  new  proof  now  exhibited  would  not  altei 
LIVINGSTON  the  merits  of  the  case,  nor  remove  the  conclusion  already 
HOBBS  drawn  from  the  pleadings  and  original  proofs ;  that  the  pro- 
ceeding by  which  the  exchange  of  the  land  in  Brooklyn,  for 
the  Pennsylvania  land,  was  effected,  was  a  fraud  of  Hubb? 
and  Baldwin,  practised  upon  the  plaintiff.  I  think  the  weight 
of  evidence  would  still  be,  that  the  witnesses  had  not  mis- 
taken one  tract  of  land  for  another. 

Either  of  the  grounds  I  have  mentioned  appears  to  me  to 
be  sufficient  to  resist  the  application.  It  was,  also,  one  of 
Lord  Bacon's  rules,  that  no  bill  of  review  was  to  be  allowed, 
except  the  decree  had  been  first  performed,  as  if  it  be  for 
money,  that  the  money  be  paid ;  and  this  rule  we  find  to  be 
afterwards  declared  and  acted  upon.  (2  Bro.  P.  C.  24.  note. 
Wiser  v.  Blachli/,2  Johns.  Ch.  Rep.  491,  and  the  cases  there 
referred  to.)  But  where  the  party  is  in  execution  under  the 
decree,  and  unable  to  pay,  (as  is  the  case  here,)  I  should 
rather  conclude  that  the  non-payment  of  the  money  is  not  an 
insuperable  obstacle ;  and  so  it  seems  to  have  been  under- 
stood. (1  Fern.  117.  264.) 

I  shall,  therefore,  dismiss  this  petition,  with  costs.  They 
are  awarded  when  the  application  has  no  colorable  support. 
[  *  1 29  ]  (3  Aik.  32.)  By  an  ordinance  of  Lord  Hardwicke,  *in 
1741,  no  bill  of  review,  for  newly-discovered  evidence,  was  to 
be  permitted  without  a  deposit  of  50  pounds  to  answer  dam- 
ages and  costs,  if  the  Court  should  award  any. 

Prayer  of  the  petition  denied,  with  costs. 
104 


CASES  IN  CHANCERY 


129 


1817. 


DEMAREST 

DEMAREST  and  Wife  against  WYNKOOP  and  others.       WYXKOOP. 

[Reviewed.  1  Paige,  71.] 

Twenty  years  possession  by  a  mortgagee,  without  any  account  or  ac- 
knowledgment of  a  subsisting  mortgage,  is  a  bar  to  all  equity  of  re- 
demption, unless  the  mortgagor  can  bring  himself  within  the  proviso 
in  the  statute  of  limitations,  the  construction  of  which  is  the  same  in 
equity  as  at  law. 

The  disability  that  entitles  the  party  to  the  benefit  of  the  proviso,  must 
be  existing  at  the  time  the  right  first  accrues  ;  so  that,  if  during 
the  ten  years  allowed  to  an  infant,  a  subsequent  disability,  as  cov- 
erture, arises,  the  time  continues  to  run  notwithstanding  such  sec- 
ond disability.  Suceessive  or  cumulative  disabilities  are  not  within 
the  policy  or  settled  and  sound  construction  of  the  statute. 

(Lfeme  covert  may  mortgage  her  separate  property  for  her  husband's  debts  ; 
so  she  may  also  execute  a  valid  power  to  sell  the  property,  in  case  of 
default,  pursuant  to  the  statute.  A  sale  of  mortgaged  premises  at 
public  auction  by  a  surviving  executor  of  the  mortgagee,  according 
to  the  statute,  is  a  complete  bar  to  the  equity  of  redemption.  And 
where  the  sale  was  regular  and  fair,  but  the  deed  of  the  executor  pro- 
duced, was  dated  nineteen  years  after  the  time  of  sale,  it  was  presumed 
that  a  deed  was  duly  given  at  the  time,  and  lost,  and  that  the  one 
produced  was  executed  for  greater  caution. 

But,  as  between  the  parties,  where  there  is  no  intervening  right,  such  a 
deed  will  take  effect,  by  relation,  from  the  time  of  the  conclusion  of 
the  bargain  and  sale,  especially  in  a  Court  of  equity. 

(n  a  mortgage,  by  husband  and  wife,  of  the  wife's  separate  estate,  the 
wife  may,  if  she  choose,  reserve  the  equity  of  redemption  to  the  hus- 
band alone,  who  may  sell  and  dispose  of  it. 

Where  a  plaintiff  had  color  of  claim,  though  barred,  in  the  opinion  of 
the  Court,  by  lapse  of  time,  his  bill  was  dismissed  without  costs. 

BILL  filed  October  llth,  1815,  for  the  redemption  of  a  October  6  7, 
mortgage.  Philip  Minthorn,  in  March,  1756,  died  seised  of  Q>  a'ld  Decem~ 
:i  tract  of  land  in  the  out-ward  of  the  city  of  New-  York, 
leaving  a  widow  and  nine  children.  By  his  will,  he  devised 
all  his  estate  to  his  widow,  for  life,  and  after  her  decease,  *to  [  *  ]  30  ] 
his  children  in  fee.  Hannah,  one  of  the  daughters,  married 
fl'icrt  Banta,  and  on  the  29th  of  October,  1765,  Johanna,  the 
widow  of  the  testator,  conveyed  to  the  children  all  her  inter- 
est in  the  estate.  By  indenture  of  partition,  executed  the 
30th  of  October,  1765,  between  the  children  and  their  hus- 
bands, reciting  the  will  of  their  father  and  the  release  of  their 
mother,  and  that  they  were  seised  as  tenants  in  common,  and 
had  divided  the  land  into  lots,  and  that  Wiert  Banta,  and 
Hannah,  his  wife,  had  drawn  three  lots,  marked  No.  2,  the 
other  eight  parties,  in  consideration  of  five  shillings,  &c.,  bar- 
gained, sold,  released  and  confirmed  unto  the  said  Wiert 
Banta  and  his  wife  the  said  three  lots,  to  have  and  to  hold 
the  same,  to  the  said  Wiert  Banta,  and  Hannah,  his  wife, 
ih<ir  heirs  and  assigns,  forever,  in  sc*>ralty.  The  like  deed 

VOL.  III.  14  "  105 


130  CASES  IN  CHANCERY. 

1817.       was  executed  by  each  of  the  parties  to  the  others,  with  cove- 

v^^-^^-^fc^x  nants  and  warranty. 

DEMAREST  Wiert  Bcmta  and  his  wife,  by  a  deed  of  mortgage  dated 
WVNKOOP  the  29th  of  ^"flrc*>  1771'  reciting  the  seisin  of  P.  M.,  his 
death,  and  the  will,  release  and  partition,  mortgaged  the  said 
three  lots,  No.  2,  to  Gabriel  Ludlow,  to  secure  the  payment 
of  three  hundred  pounds,  with  interest,  in  one  year  from  the 
date  thereof.  The  mortgage  contained  the  usual  power  of 
sale,  in  case  of  default,  and  the  overplus  arising  from  the  sale, 
after  paying  the  debt,  &c.,  was  to  be  pud  to  Wiert  Banta,  his 
heirs,  executors,  administrators,  <~  assigns.  No  part  of  the 
principal  or  interest  was  ever  paid  by  the  mortgagors  ;  and 
G.  L.,  the  mortgagee,  died  the  20th  of  December,  1773,  hav- 
ing made  his  will  the  5th  of  February,  1771,  and  appointed 
four  executors.  After  his  decease,  Daniel  Ludlow,  one  of 
his  children,  as  devisee,  heir,  or  legal  representative,  became 
legally  possessed  of  the  mortgage. 

Wiert  Banta,  and  Hannah,  his  wife,  had  three  children, 
Hannah,  Frances,  and  Catharine.  Hannah  married  one  Al- 
nngton,  and  lived  on  one  of  the  lots  so  mortgaged,  during 
the  revolutionary  war,  and  afterwards  left  this  country,  with 

[  *  131  ]  her  husband,  and  died  without  issue.  Frances  married  *  Nich- 
olas Nagel,  now  living  in  New- Jersey.  Catharine  died  in 
1782,  leaving  the  plaintiff,  Hannah,  her  only  child  and  heir 
at  law,  then  about  one  year  old,  and  who,  afterwards,  at  the 
age  of  19  years,  married  the  plaintiff  John  Demarest,  and 
claimed  a  moiety  of  the  premises,  subject  to  the  equity  of 
redemption  of  the  said  mortgage. 

Hannah,  the  wife  of  W.  B.,  died  in  1786,  and  the  defend- 
ants, in  their  answer,  alleged,  that  being  seised  under  the  par- 
tition, as  joint  tenants  by  entireties,  W.  Banta,  as  survivor,  be- 
came seised  of  the  equity  of  redemption  in  fee. 

On  the  7th  of  May,  1788,  W.  Banta,  Nicholas  Nagel,  and 
Frances,  his  wife,  who  was  described  as  the  only  child  of  the 
said  Wiert  Banta,  for  the  consideration  of  125  pounds,  con- 
veyed the  mortgaged  premises  to  Daniel  Ludlow,  in  fee. 
The  deed  contained  full  covenants  of  title,  and  against  all 
encumbrances  except  the  mortgage.  Daniel  Ludlow  made 
an  endorsement,  under  his  hand  and  seal,  on  the  deed,  cove- 
nanting that  no  action  should  be  brought  against  W.  B.,  his 
heirs,  &c.,  for  the  money  secured  by  the  said  mortgage,  it 
being  only  Tcept  on  foot  to  protect  the  title.  The  defendants, 
in  their  answer,  charged  that  the  125  pounds  was  then  the 
full  value  of  the  equity  of  redemption. 

On  the  28th  of  January,  1791,  Robert  Cromeline  and  Sam- 
uel Verplarik,  the  two  surviving  executors  of  G.  Ludlow,  by 
virtue  of  the  power  contained  in  the  mortgage,  advertised  the 
premises  for  sale,  at  public  auction,  on  the  1st  of  August^ 
106 


CASES  IN  CHANCERY.  131 

1791,  pursuant  to  the  statute.     R.  C.  in  the  mean  time  died,        1817. 
and  the  premises  were  sold  by  S.  V.,  the  surviving  executor,  ^*r~^~**^ 
at  auction,  according  to  the  notice,  to  Daniel  Ludlow,  as  the     DEMARE^-I 
highest  bidder,  for  320  pounds,  who  thereby  became  entitled     \VYNKOOI- 
to  a  conveyance  ;  but  whether  a  deed  was  then  executed,  and 
afterwards  lost  or  mislaid,  did  not  appear;  but  the  defendants, 
in  their  answer,  set  forth  a  deed  from  &  V.,the  surviving  ex- 
ecutor, &c.,  to  *Daniel  LuJlow,  dated  the  2d  of  April,  1810,       [  *  132  | 
which  they  insisted  was  a  perfect  bar  to  the  equity  of  redemp- 
tion, if  any  existed. 

Daniel  Ludlow  was  in  the  actual  possession  oi  the  prem- 
ises, from  the  time  he  purchased  the  equity  of  redemption  of 
Banta,  until  the  17th  of  May,  1790,  when,  by  a  deed,  reciting 
that,  by  sundry  mesne  conveyances,  he  had  become  seised  of 
the  premises,  in  fee  simple,  he  conveyed  the  same,  in  fee,  to 
Petrus  Stuyvesant,  with  full  covenants  as  to  title. 

Stuyvesant  continued  in  quiet  possession  of  the  premises 
until  the  15th  of  April,  1803,  when,  by  three  several  deeds, 
he  conveyed  the  premises,  in  three  several  parcels,  to  Jacob 
Boerum  and  A.  Wynkoop,  and  the  other  defendants,  in  fee. 
J.  B.,  on  the  20th  February,  1805,  released  his  moiety  to  the 
defendant  Wynkoop. 

The  plaintiffs  claimed  the  equity  of  redemption  to  a  moiety 
of  the  premises  mortgaged,  the  whole  of  which  they  averred 
to  be  worth  sixty  thousand  dollars,  exclusive  of  improvements 
That  the  defendants  have  been  in  possession  of  the  rents  and 
profits  for  several  years,  which  were  more  than  sufficient  to 
extinguish  the  principal  and  interest  of  the  mortgage,  but  re- 
fused to  render  an  account,  &c.  The  bill  prayed  for  an  ac- 
count, and  for  general  relief,  &c. 

The  defendants,  in  their  answer,  denied  all  knowledge  or 
notice  of  any  right,  title,  or  claim,  of  the  plaintiffs  to  the 
property,  and  stated  that  they  were  informed,  and  verily  be- 
lieved, that  the  equity  of  redemption  has  been  released  to  D. 
L.,  who  had  become  entitled  to  the  mortgage,  and  that  the 
equity  of  redemption  had  been  foreclosed.  That,  considering 
themselves  absolute  owners  of  the  property,  they  have  kept 
no  accounts  of  the  rents  and  profits,  which,  however,  they 
allege  would  fall  far  short  of  the  amount  due  on  the  mortgage, 
if  the  same  were  redeemable ;  and  they  insisted  on  the  length 
of  possession,  *connected  with  the  other  circumstances,  as  [  *  133 
full  bar  to  all  right  or  equity  of  redemption  by  the  plaintiffs. 

The  cause  came  on  to  be  heard  in  October  last,  and  was 
argued  by  D.  B.  Ogden  and  S.  Jones,  jun.,  for  the  plaintiffs, 
and  by  Harison,  T.  A.  Emmet,  and  Slosson,  for  the  defendants. 

The  counsel  for  the  plaintiffs  insisted  on  the  following 
points : — 

107 


133  CASES  IN  CHANCERY. 

1817.  !•  That  by  the  partition  deed  between  the   children  of 

v^^-x/-1^-'  Philip  Minthorne,  deceased,  Hannah,  the  wife  of  W.  Banta, 

DEMAREST     became  seised  in  severally  of  the  estate  which  she  before 

WYNKOOP      ne^  m  common  with  the  other  children.     (8  Johns.  Rep. 

168.    1  Afk.  165.) 

2.  That  the  fee  being  in  Hannah,  the  wife  of  W.  Banta, 
her  heirs  have  a  right  to  redeem  the  mortgage,  unless  the 
equity  of  redemption  has  been  foreclosed  ;  but  no  act  has 
been  done  which  can  defeat  their  right  to  redeem. 

3.  That  the  length  of  time,  in  this  case,  cannot  operate  as 
a  bar  against  the  plaintiffs  ;  the  plaintiff  Hannah  having  been 
constantly    under   legal    disabilities.      (Smith    v.    Burtis,   9 
Johns.  Rep.  174.  181.     2  Fern.  377.     Free,  in  Ch.  116.) 

For  the  defendants,  the  following  points  were  insisted  on  : — 

1.  That  the  deed  of  the  30th  of  October,  1765,  between 
the  parties  of  the  first  part,  and  Wiert  Banta  and  his  wife, 
operated  as  a  bargain  and  sale,  to  W.  B.  and  his  wife,  of  the 
premises  in  question,  by  which  they  took  an  estate  in  fee,  by 
entireties  ;  which  estate,  on  the  death  of  Hannah,  survived 
to  W.  B.  and  his  heirs.    (4  Cruise,  Dig.  tit.  32.  ch.  8.  s.  19. 
Co.  Litt.  200  b.  189  a.  190  b.    5  Com.  Dig.  166.    Co.  Litt. 
169  a.    18  Fin.  305.  2  Johns.  Rep.  288.    4  Johns.  Rep.  61. 
3  Vesey,  690.) 

2.  That  the  pecuniary  consideration  expressed  in  the  deed 
was  sufficient  to  raise  a  use  to  the  bargainee,  which  being  once 
raised,  the  declaration  of  that  use  must  govern ;  and  the  hus- 

'  *  134  ]  band  and  wife  had  an  undoubted  right  to  limit  *the  uses  of 
her  estate  as  they  might  agree ;  and,  besides,  the  estate,  pre- 
vious to  partition,  belonged  to  them  jointly,  by  purchase  from 
tne  widow  of  P.  M.,  so  far  as  respected  her  interest,  the  ad- 
vance for  such  purchase  being,  no  doubt,  made  by  the  hus- 
band. That  the  considerations  stated  excluded  the  idea  of 
a  trust  on  the  part  of  the  husband  for  the  wife ;  but  even  if 
there  was  a  trust,  it  was  not  charged  in  the  bill,  nor  a  spe- 
cific execution  of  it  sought ;  and,  moreover,  it  could  not  be 
enforced  against  an  innocent  purchaser  relying  on  the  legal 
title.  (3  Johns.  Rep.  432.  2  Vent.  35.  Harg.  Co.  Litt.  123. 
n.  8.  Sounders  on  Uses,  313.  315.  4  Cruise,  194.  tit.  32.  ch. 
12.  s.  31.  2  Afk.  74.  Bro.  tit.  Coverture,  pi  477.  2  Sound. 
180.  1  Mod.  290.  1  Sid.  466.  2  Co.  57.  2  Comyn's  Dig. 
Baron  and  Feme,  (B.  2.)  2  Cruise,  508.  tit.  18.  ch.  1.  s.  35. 
5  Term  Rep.  652.) 

3.  That  the  mortgage  by  W.  B.  and  his  wife  to  Daniel  Lud- 
low  reserved  to  the  husband  the  entire  equity  of  redemption. 
As,  after  her  death,  the  husband  had  full  power  to  redeem,  and 
was  entitled  to  the  surplus  money,  his  release  to  D.  L.  gave 
a  perfect  title,  and  extinguished  the  equity  of  redemption. 
10S 


CASES  IN  CHANCERY. 


1,34 


4.  Admitting  that  the  equity  of  redemption  had  not  been 
conveyed  to  D.  L.,  or  barred  by  any  of  the  conveyances  men- 
tioned, the  sale  by  the  executors  of  G.  L.,  the  mortgagee, 
under  the  power,  was  a  complete  bar  and  foreclosure,  accord- 
ing to  the  statute.     After  a  lapse  of  23   years,  coupled  with 
the  uninterrupted  possession,  the  Court  will  intend,  that  a 
deed  was  executed  at  the  time,  and  presume  a  notice  to  have 
been  regularly  given,  pursuant  to  the  act.  (Bergen  v.  Bennet, 
1  Caines's  Cases  in  Error,  1.) 

5.  The  plaintiffs  are  barred  by  the  statute  of  limitations. 
Mrs.  Demarest  came  of  age  as  early  as  1802,  when,  at  least, 
the  statute  began  to  run  against  her  husband,  who  was  bound 
to  pursue  his  remedy  within   ten  years  after  her  disability  as 
an  infant  ceased  ;  and  that  this  was  equally  *a  bar  to  the  wife, 
who  is  only  protected  during  the  continuance  of  her  first 
disability. 

6.  That  the  length  of  time  connected  with  the  adverse 
possession,  and  the  circumstance  of  the   defendants  being 
bona  Jide  purchasers,  for  a  valuable   consideration,  without 
notice,  is  a  complete  bar  to  the  relief  sought  by  the  bill.     (2 
Fesey,  jun.    454.     2  Freeman,  24.     2   Vern.  158.     Finch, 
102.     1  Johns.   Ch.  Rep.  219.  300.     1    Ch.  Rep.  286.     2 
Vent.  340.     2  Fern.  418.     3  AtJc.  235.     3  P.  Wms.  287. 
note.     1  Johns.  Cas.  213.     6  East,  80.) 

7.  That  the  defendants  are  not  liable  to  account ;  and  as 
the  bill  does  not  seek  to  redeem,  but  merely  claims  to  have 
the  premises  discharged  from  the  mortgage,  on  the  ground 
that  the  debt  is  extinguished  b}  the  perception  of  the  rents 
and  profits,  there  is  no  ground  on  which  the  Court  can  give 
relief.     (7  Vesey,  541.     4  Bro.  C.  C.  521.) 

The  cause  stood  over  for  consideration  until  this  day,  when 
the  following  opinion  was  delivered  by 


1817. 


DEMARKST 
v. 

WXMtOOP. 


[*135 


December  3. 


THE  CHANCELLOR.  This  is  a  suit  to  redeem  a  mortgage, 
executed  as  early  as  1771.  Persons  claiming  an  estate,  in 
fee,  under  the  mortgage,  have  been  in  possession  of  the  mort- 
gaged premises  since  May,  1788,  or  27  years  before  the  filing 
of  the  bill. 

Several  objections  have  been  taken  to  the  suit. 

1 .  The  length  of  possession  is  set  up,  and  relied  upon,  in 
the  answer,  as  a  bar  to  the  claim. 

It  is  a  well-settled  rule,  that  20  years'  possession,  by  the    Twenty-can 
mortgagee,  without  account  or  acknowledgment  of  any  sub-  p°ssess101'  vv  a 

.     .  °  *  .  &  .      J  mortgagee  is  a 

sisting  mortgage,  is  a  bar  to  a  redemption,  unless  the  mort-  bar  to  the  equi- 
gagor  can  bring  himself  within  the  proviso  in  .the  statute  of  |7  nof  redemP 
limitations.     This  proviso  saves  the   rights  of  infants,  feme 
coverts,  &c.,  if  they  bring  their  action  within  ten  years  after 
iheir  disability  removed.     The  analogy  between  the  right  to 

109 


136*  CASES  IN  CHANCERY. 

1817.       redeem  in  this  Court,  and  the  right  of  entry  at  law,  is  pre 
\^t*^~*^/  sumed  complete  and  entire  throughout,  so  that  tne  *mortga- 
DEMAREST     gor  who  comes  to  redeem,  after  the  20  years,  must  show 
wv>.Vv-«         himself  within  one  of  the  exceptions  that  would  save  his  entry 

\VliSAUUr.  .  11  i-i  •  i  11 

iii°-iit  to  re-  or  ^ectment  at  law ;  and  he  must,  likewise,  show  that  he 

bem  in  equity,  had  filed  his  bill  within  10  years  after  his  disability  ceased. 

i^d  "f faw,  ea"  The  cases  wmcn  I  have  looked  into,  and  to  which  I  now 

naiogous.          refer,  are  uniform  in  support  of  this  just  and  necessary  rule  ; 

The  construe-  an(^  the  construction  of  the  statute  is  the  same  here  as  at  law. 

tion  of  the  stat-  The  same  limitations  are  adopted,  with  the  allowance  of  the 

ti^nshf  the  same  same  time  for  disabilities.     (Jenner  v.  Tracy,  note  to  3  P. 

in  equity  as  at  Wms.    287.     Belch  v.  Harvey,  ib.  and  in  app.   No.   12  in 

•Silgrfen'*  Law  of  Vendors,  3d  edit.     Lord  Kenyan,  in  Bonny 

v.  Ridgard,  cited  in  17  Vesey,  99.     Lord  Camden,'m  3  Bro. 

639.  note.  Anon.  3  Aik.  313.     Aggar  v.  Picker  ell,  3  Aik. 

225.     Lord    Rosslyn,   in    Lytton   v.    Lytton,   4    Bro.    458. 

Hodh  v.  Haley,  1  J^esey  fy  B.  536.     Reeks  v.  Postlethwaite, 

Cooper's  Eq.  Rep.  161.     Bairon  v.  Martin,  id.  189.     Moor 

v.  Cable,  1  Johns.  Ch.  Rep.  385.) 

In  this  case,  Daniel  Ludlow,  who  claimed  the  mortgage, 
took  a  deed,  in  fee,  on  the  7th  of  May,  1788,  from  Banta, 
one  of  the  mortgagors,  and  from  Nagel  and  his  wife,  who 
was  one  of  the  heirs  of  Banta's  wife,  the  other  mortgagor. 
From  that  time,  we  are  to  consider  the  representative  of  the 
mortgagee  in  possession,  claiming  to  hold  the  land,  not  in 
trust,  or  mortgage,  but  adversely,  and  in  his  own  right.  At 
that  time,  the  plaintiff,  Hannah  Demurest,  was  an  infant  of 
the  age  of  seven  years,  and  entitled  to  all  the  equity  of  re- 
demption which  she  now  sets  up.  She  was  of  age  in  1802,  and 
her  bill  was  not  filed  until  1815  ;  so  that  not  only  the  20  years 
had  elapsed  since  the  mortgagee's  possession,  but  the  10 
years  since  her  disability  of  infancy  ceased.  She  had  then 
lost  her  equity  of  redemption  by  lapse  of  time.  It  is  true 
she  has  not  had  20  full  years  free  of  disability,  to  redeem,  bui 
she  has  had  10  years  free  of  disability,  and  more  than  20 
years  in  the  whole  have  elapsed;  and  this  is  all  that  the 
[  *  137  ]  statute  allows.  For  this  *purpose  I  may  refer  to  the  ob- 
servations which  I  made  in  the  Supreme  Court,  in  the  case 
of  Smith  v.  Burtis,  (9  Johns.  Rep.  181.)  and  which  appear 
to  me  to  be  founded  on  a  sound  construction  of  the  statute 
of  limitations.  The  party  has,  in  every  event,  20  years  to 
make  his  entry ;  and  if  under  disability  during  any  part  of 
that  time,  he  has  1 0  years,  and  no  more,  after  the  disability 
ceases.  It  may  so  happen  that  the  20  years,  and  more,  will 
elapse  during  the  disability,  and  then  10  years  will  be  after- 
wards allowed  cumulatively ;  or  the  disability  may  cease,  so 
far  within  the  period  of  the  20  years,  as  to  allow  of  only  20 
years  in  the  whole,  though  part  of  that  period  be  covered  by 
110 


CASES  IN  CHANCERY.  137 

the  disability.     This  construction  does  not  give  to  pc  rsons        1Q17. 
laboring  under  disability  the  same  number  of  years  after  they  ^^-^~^s 
become  of  competent  ability,  as  it  allows  to  other  persons     DEMAKEST 
who  were  under  no  such  disability.     Such  is  the  policy,  and     \VYNJCOOP. 
the  very  language  of  the  statute ;  for  it  did  not  mean,  as  in 
the  ease  of  the  limitation  of  personal  actions,  that  the  party 
should,  at  all  events,  have  the  full  period  of  time  after  the  dis- 
ability had  ceased,  because  the  words  of  the  act  are  explicit, 
that  the  extension  of  the  time  of  making  the  entry  beyond  the 
twenty  years,  is  in  no  case  to  exceed  ten  years  after  the  dis- 
ability is  removed.     This  is  also  the  amount  of  the  doctrine 
••ontained  in  the  case  of  Doe,  ex  dem.  George,  and  Frances, 
I*  is  ivife,  v.  Jesson,  (6  East,  80.)  for  there  the  whole  period, 
from  the  time  that  the  right  descended  or  accrued,  to  the 
time  of  bringing  the  suit,  was  but  27  years,  and  above  eight 
of  the  first  years  of  that  time  had  been  consumed  by  an  ac- 
knowledged disability ;  yet  the  right  of  entry  was  held  to  be 
tolled  by  lapse  of  time. 

In  the  case  of  Belch  v.  Harvey,  one  of  the  cases  above  re- 
ferred to,  the  cause  was  ended  by  consent  of  parties,  after 
argument ;  but  Lord  Talbot,  who  had  studied  the  case 
thoroughly,  then  observed,  that  if  he  had  made  a  decree,  his 
opinion  would  have  been,  that  after  the  disability  *of  infancy  [  *  133  ] 
was  removed,  the  time  fixed  for  prosecuting,  in  the  proviso, 
which  is  ten  years,  should  also  have  been  observed.  The 
proviso,  as  he  said,  contained  an  exception  of  several  cases 
out  of  the  purview  of  the  statute,  and  if  the  parties  at  law 
would  v\vail  themselves  of  the  proviso,  they  must  take  it  under 
such  restrictions  as  the  legislature  hath  annexed  to  it,  and 
that  is,  to  sue  within  ten  years  after  the  impediment  ceases. 
Lord  Talbot  also  adds,  "  Why  should  not  the  same  rule  govern 
in  equity  ?  I  think  there  is  great  reason  that  it  should. 
The  persons  who  are  the  subject  of  the  proviso  are  not  dis- 
abled from  suing  ;  they  are  only  excused  from  the  neces- 
sity of  doing  it  during  the  continuance  of  a  legal  impediment : 
therefore,  when  that  difficulty  is  removed,  the  time  allowed 
for  their  further  proceeding  should  be  shortened.  If  they  would 
excuse  a  neglect  under  the  first  part  of  the  proviso,  should 
they  not  do  it  upon  the  terms  on  which  such  excuse  is 
given  ? " 

But  another  difficulty  may  be  started  in  this  case :  during 
the  infancy  of  the  plaintiff,  a  second  disability  ensued,  by 
means  of  her  marriage ;  and  it  has  been  made  a  question, 
whether  a  succession  of  disabilities,  thus  closing  on  each 
other,  can  be  permitted  as  an  excuse  within  the  statute. 
Upon  one  construction,  she  would  have  the  whole  period  of 
her  coverture,  and  ten  years  afterwards. 

Ill 


138  CASES  IN  CHANCERY. 

1817.  I  am  clearly  of  opinion,  that  the  party  can  only  avail  hirn- 

^^-^^^^  self  of  the  disabilities  existing  when  the  right  of  action  first 

DEMAREST       accrued. 

WYNKOOP.         ^  several  disabilities  exist  together  at  the  time  the  right  oi 

The  disability  action  accrues,  the  statute  does  not  begin  to  run  until  the 

which  entitles  a  party  has  survived    them  -all.      (1  Plowd.  375.)      But  the 

party  to  the  ben-  •-»<••»  T  r  -i  •  \       • 

entofiheprotn-  case  ot  Uoe  v.  Jcssoti,  already  referred  to,  is  an  authority  to 
so  in  the  statute  show  that  cumulative  disabilities  cannot  be  allowed.     There 

of       limitation.     ,....,  .       .  .         .    .  .     , 

must  exist  when  the  disseisin  happened  when  the  right  owner  was  an  infant; 
the  ng_htof  ac-  an(j  ]ie  died  in  infancy,  leaving  his  infant  sister  his  heir;  and 

lion     first     Etc* 

crues.  the  Court  of  K.  B.  held,  that  she  was  bound,  *notwithstand- 

[  *  139  ]  ing  her  infancy,  to  bring  her  ejectment  within  ten  years  after 
the  death  of  her  brother,  as  more  than  20  years  had,  in  the 
whole,  elapsed  since  the  death  of  the  person  last  seised. 

The  policy  of  the  statute  of  limitations  is,  to  quiet  posses- 
Successii-e  or  sions,  and  extinguish  dormant  claims.     There  is  much  wis- 
abiiitie^'are  not  ^om  m  tne  general  provision,  and  though  Courts  of  equity 
within  the  poll-  are  not  within  the  letter  of  those  statutes,  they  have  generally 
constructioTof  f°Il°wed  tnG  rule>  and  held  equitable  rights  concluded  by  the 
the  statuie.        same  bar,  and  subject  to  the  same  exceptions.     If  there  are 
instances  to  the  contrary,  they  are  special  cases,  as  those  of 
direct  trusts,  or  as    that    of   Bond  v.  Hopkins,  (1   Sch.  &/• 
Lef.  413.)  where  lapse  of  time  was  attempted  to  be  set  up 
manifestly  against  conscience,  or  where  there  is  fraud  in  the 
transaction.     (1  Johns.  Ch.  Rep.  594.)     If  disability  could  be 
added  to  disability,  claims  might  be  protracted  to  an  indefinite 
extent  of  time,  and  to  the  great  injury  and  oppression  of  the 
country.     According  to  an  expression   of  Lord  Eldon,  "  a 
right  might  travel  through  minorities  for  two  centuries."     It 
would  be  impolitic,  as  well  as  contrary  to  established  rule,  to 
depart  from  the  plain  meaning  and  literal  expression  of  the 
proviso  in  the  statute  of  limitations.     We  cannot  well  mis- 
apprehend the  meaning  of  the  legislature.     The  party  bring- 
ing himself  within  the  proviso,  must  be,  "  at  the  time  such 
r<rht,  or  title,  first  descended  or  accrued,  within  the  age  of 
21  years,  feme  covert,  insane,  or  imprisoned,"  and  he  must 
bring  his  action  within  ten  years  "  after  such  disability  re- 
moved." 

The  case  of  Eager  v.  The  Commonwealth  (4  Tyns^a 
Mass.  Rep.  182.)  is  another,  and  a  very  weighty  decision  on 
this  point.  The  plaintiff  was  an  infant,  and  before  the  ter- 
mination of  her  infancy,  the  disability  of  coverture  occurred  ; 
but  the  Supreme  Court  of  Massachusetts  held,  that  the  latter 
disability,  not  existing  when  the  right  first  accrued,  was  not 
[*140]  within  the  proviso,  and  that  the  party  was  *bound  to  have 
brought  her  writ  within  the  given  time  after  the  first  disability 
had  ceased.  The  Supreme  Court  of  Connecticut  did,  indeed, 
112 


CASES  IN  CHANCERY.  140 

in  the  case  ol  Eaton  v.  Sanford,  (2  Day's  Rep.  523.)  recog-        1Q17 
nize  a  right  which  had  floated  through  successive  disabilities  ^*~^s-*+-s 
for  near  sixty  years.     But  no  reasons  of  the  Court  are  as-     DEMAREST 
signed  in  the  case,  and  the  decision  itself  was  afterwards  disre-     \WSKOOP 
garded,  and  the  question  treated  as  an  open  one  by  the  Su- 
preme Court  of  the  same  state,  under  a  new  organization  of 
the  Court,  in  the  case  of  Bush  \.  Bradley,  (4  Day's  Rep. 
298.)     In  the  last  case,  there  was  no  decision  upon  the  point ; 
but  I  nlay  refer  to  the  opinion  of  one  of  the  judges,  (Mr. 
Justice  Smith,)  vindicating  the  construction  given  in  6  East, 
by  a  plain  and  unanswerable  argument. 

The  construction  which  excludes  from  the  benefit  of  the 
proviso,  in  all  our  statutes  of  limitations,  successive  or  cumu- 
lative disabilities,  is  within  the  reason  and  spirit  of  the  decis- 
ion in  the  celebrated  case  of  Stoivel  v.  Zzuch.  (Plowd.  353.) 
The  principle  of  that  case  decidedly  governs  this  question  ; 
and  for  the  purpose  of  showing  this,  it  may  not  be  amiss  to 
give  a  short  review  of  it. 

Stowel,  being  seised  in  fee  of  certain  lands,  was  disseised 
by  Zouch,  who  levied  a  fine  with  proclamations.  Three 
years  afterwards,  Stowel  died,  without  entry  or  claim  to  avoid 
the  fine,  leaving  his  heir  at  law  an  infant  of  the  age  of  six 
years.  The  infant  made  no  claim  during  his  minority,  but 
entered  within  one  year  after  he  came  of  age.  It  was  de- 
termined, by  a  great  majority  of  the  judges,  in  the  exchequer 
chamber,  after  several  solemn  arguments,  (for  the  case  was 
argued  twice  in  the  C.  B.  and  twice  in  the  exchequer  chamber, 
before  all  the  judges  of  England,}  that  the  demandant  was 
barred,  by  reason  of  not  making  his  claim  before  the  expira- 
tion of  the  five  years,  which  had  begun  to  run  in  the  time  of 
his  ancestor,  and  expired  in  the  time  of  his  infancy.  No  point 
was,  perhaps,  ever  more  fully,  ably,  and  profoundly  argued. 
The  discussion  *was  aided  by  illustrations  drawn  from  reason,  [  *  141  ] 
convenience,  policy,  precedents,  and  the  principles  of  the 
common  law ;  in  short,  it  was  adorned  by  all  the  learning 
and  eloquence  of  Westminster  Hall.  The  argument  and  de- 
cision established  the  doctrine,  that  the  exceptions  in  the 
statute  of  fines  of  4  Hen.  VIII.  in  favor  of  infants  and  others, 
extended  only  to  such  infants,  &c.  to  whom  the  right  ac- 
crued, or  who  actually  possessed  a  right  when  the  fine  was 
levied,  and  that  no  such  right  had  at  that  time  descended  or 
accrued  to  the  demandant,  for  his  ancestor  was  then  alive ; 
that  the  circumstance  of  the  demandant  being  an  infant  when 
his  ancestor  died,  was  of  no  avail,  because  the  exception  in 
the  statute  gave  the  excuse  of  infancy  to  those  only  to  whom 
a  right  first  accrued,  or  who  had  a  right  at  the  time  of  the 
fine  levied,  and,  therefore,  the  plea  of  infancy  did  not  apply 
to  the  case ;  that  no  new  right  accrued  after  the  fine  was 

VOL.  III.  15  113 


141  CASES  IN  CHANCERY. 

1817.  levied,  as  the  demandant's  title  was  as  heir  to  his  ancestor, 
^g^-~^~+>~>'  in  whom  the  right  attached  when  the  fine  was  levied ;  that 
DIMAREST  public  tranquillity  was  more  to  be  favored  than  the  nonage 
P.  °^  an  mfantj  an(l  tnat  ^  infancy,  closing  on  infancy,  was  to 
be  allowed  in  succession,  "  the  matter  might  possibly  be  de- 
layed many  hundred  years ; "  that  the  statute  intended  to 
limit  a  certain  time  for  the  first  right,  and  which  was  not  to 
be  exceeded  by  exposition  or  equity,  though  particular  persons 
might  suffer  by  it ;  "  that  the  public  repose  was  more  to  be 
regarded  than  the  private  convenience  of  any  particular  per- 
son, whether  he  be  an  infant,  or  of  unsound  mind,  or  in  other 
degree ;"  that  if  a  disability  terminates,  and  a  party,  within 
one  month  thereafter,  becomes  disabled  by  a  new  disability, 
as  imprisonment,  unsound  mind,  &c.,  and  so  continues  all 
the  five  years,  or,  if  at  the  end  of  the  first  month  of  the  five 
years,  he  dies,  leaving  an  infant  heir,  the  statute  continues  to 
run,  notwithstanding  the  subsequent  disability. 

The  great  principle  of  this  case,  that  the  disability  within 
*  142  ]  *the  proviso  must  exist  when  the  right  of  entry  accrues,  and 
that  a  subsequent  disability  is  of  no  account,  was  recognized 
and  confirmed  in  Doe  v.  Jones.  (4  Term  Rep.  300.)  Lord 
Kenyan  said,  that  one  uniform  construction  of  all  the  statutes 
of  limitation  had  prevailed  down  to  that  moment,  and  that 
"  it  would  be  mischievous  to  refine,  and  to  make  nice  distinc- 
tions between  the  cases  of  voluntary  and  involuntary  disabil- 
ities, (as  one  of  the  counsel,  without  any  sufficient  warrant, 
had  attempted,)  but  in  both  cases,  when  the  disability  is  once 
removed,  the  time  begins  to  run."  It  runs,  said  another  of 
the  judges,  notwithstanding  any  subsequent  disability,  eithei 
voluntary  or  involuntary.  The  case  of  Doe  v.  Shane,  M.  28. 
G.  3.  (cited  in  the  note  to  4  Term  Rep.  306.)  is,  also,  a  very 
strong  case  on  this  point.  The  plaintiff,  against  whom  a  fine 
was  set  up  in  bar,  was  of  sound  mind  when  the  fine  was 
levied,  but  he  became  insane  about  two  years  afterwards ;  and 
the  question  was,  whether  the  time  continued  to  run  against 
him  while  he  was  in  that  state.  Erskine,  for  the  plaintiff, 
found  the  current  of  authorities  so  strong  against  him,  thav 
he  would  not  pretend  to  argue  the  question,  and  the  K.  B. 
said  the  point  was  too  plain  to  be  disputed,  and  the  rule  for 
a  nonsuit  was  made  absolute. 

The  doctrine  of  any  inherent  equity  creating  an  exception 
as  to  any  disability,  where  the  statute  of  limitations  creates 
none,  has  been  long,  and,  I  believe,  uniformly  exploded. 
General  words  in  the  statute  must  receive  a  general  construc- 
tion ;  and  if  there  be  no  express  exception,  the  Court  can 
create  none.  It  was  agreed,  without  contradiction,  in 
Stowelv.  Zouch,  (Plowd'.  369.  b.  371.  b.)  that  the  general 
provision  in  the  statute  of  fines  would  have  barred  infants, 
114 


CASES  IN  CHANCERY  142 

feme,  coverts,  and  the  other  persons  named  in  the  proviso,        1817. 
equally  with  persons  under  no  disability,  if  they  had  not  been   s^^—v^^ 
named  in  the  exception  or  saving  clause.     So,  in  Dupleix  v.     DEMARES-> 
De  Roven,  (2  Vern.  540.)  the  lord  keeper  thought  it  very     \VYNVKOOP 
reasonable,  that  the  statute  of  limitations  should  *not  run       r  *  143  ' 
when  the  debtor  was  beyond  sea ;  but  there  was  no  saving  in 
the  case ;  he  could  not  resist  the  plea  of  the  statute.     The 
same  doctrine  is  declared,  in  explicit  and  impressive  terms, 
by  Sir   Wm.   Grant,  in  Beckford  v.  Wade,   (17    Vesey,  87.) 
and  who  refers  to  the  opinion  of  Sir  Eardly  Wilmot,  in  Lord 
Bucking hamshire  v.  D  rury,  (Wilmot'' s  Opinions,  177.  s.  194.) 
and  to  the  decisions  in  the  common  law  Courts,  (Hall  v. 
Wybourn,  2  Salk.  420.   Aubry  v.  Fortescue,  10  Mod.  206.) 
that  though  the  Courts  of  justice  be  shut  by  civil  war,  so  that 
no  original  could  be  sued  out,  yet  the  statute  of  limitations 
continued  to  run. 

The  opinion  of  Lord  Redesdale,  in  Hovenden  v.  Anncsley, 
(2  Sch.  fy  Lef.  630.  640.)  and  of  Lord  Manners,  in  Med- 
licott  v.  O'Donnett,  (1  Ball  and  Beatty,  156.)  are  remarkably 
elaborate  in  tracing  the  authorities,  and  in  enforcing  the 
duty  of  a  Court  of  equity  to  render  entire  obedience  to  all 
the  provisions  of  the  statutes  of  limitations. 

Before  I  leave  this  point,  I  ought  to  notice  the  case  of 
Lamar  v.  Jones,  (3  Harris  and  M1  Henry's  Rep.  328.)  .  in 
which  the  late  chancellor  Hanson,  of  Mart/land,  adopted  the 
English  rule,  and  held  that  the  equity  of  redemption  was 
barred  after  20  years'  possession  by  the  mortgagee,  without 
interest  paid,  or  an  account,  and  when  the  lapse  of  time  was 
relied  on  in  the  answer,  and  ten  years  had  expired  after  the 
disability  had  ceased.  This  would  have  been  a  case  perfectly 
in  point,  but  it  was  reversed  on  appeal,  on  the  ground  that 
the  Court  of  Chancery  in  England  had  not  adopted  that  part 
of  the  statute  of  limitations  which  allows  only  ten  years  to 
infants,  after  they  come  of  age,  to  bring  their  actions,  and 
the  Court  of  Appeals  considered  what  Lord  Talbot  had  said 
in  Belch  v.  Harvey  as  only  a  dictum.  But  I  apprehend, 
that  the  opinion  of  Lord  Talbot,  formed  as  it  was,  after 
argument,  and  ready  for  delivery,  has  all  the  weight  due  to 
his  very  enlightened  judgment.  Lord  Camden,  in  Smith  v. 
Clay,  (3  Bro.  639.  note.)  cites  that  very  case  and  opinion. 
<!o  show  that  the  statute  *of  limitations,  in  all  its  provisions,  [  *  144  J 
had  been  adopted,  and  become  the  "  settled  "  law  in  equity. 
The  case  was  also  cited  by  the  counsel  in  Lytton  v.  Lytton, 
(4  Bro.  C.  C.  458.)  and  Lord  Rosslyn  admits,  that  a  (similar 
proviso  in  the  statute  of  limitations  of  10  and  11  W.  III., 
limiting  infants  to  five  years  after  they  come  of  age,  to  bring 
error,  was  to  be  adopted  with  the  provisions  of  that  statute, 

115 


144  CASES  IN  CHANCERY. 

1817.       as  applicable  to  the  analogous  case  of  bills  of  review.     This 

^r^s-**^  is  a  clear  judicial  sanction  to  the  doctrine  of  Lord  Talbot, 

DEMAREST     and,  therefore,  as  well  upon  authority  as  upon  the  reason  and 

WYNKOOP      policy  of  the  rule,  I  conclude,  that  the  Court  of  Appeals  in 

Maryland  was,  in  this  instance,  mistaken ;  and  with  respect 

to    the    learned    chancellor's   opinion,   notwithstanding   the 

reversal,  I  trust  I  hiay,  without  offence,  be  permitted  to  say, 

Sccevola  assentior. 

I  conclude,  accordingly,  that  the  lapse  of  time  is  here 
a  bar  to  the  right  of  redemption.  The  plaintiff  has  not 
excused  her  laches,  and  the  length  of  adverse  possession 
being  insisted  on  by  the  answer,  the  defendant  is  entitled 
to  the  benefit  of  it  equally  as  if  it  had  been  pleaded. 
(1  Afk.  494.) 

2.  As  this  first  point  is  decisive  against  the  bill,  I  need 
not  touch  the  other  points  raised  on  the  part  of  the  de- 
fendants ;  but  it  may,  perhaps,  be  more  satisfactory  to  the 
parties,  that  I  should  notice,  at  least,  one  objection  going  to 
the  merits  of  the  case. 

A. feme,  covert      The  sale  by  the  executors  of  the  mortgagee  appears  to 
may  mortgage  i)e  aiso  a  valid  bar  to  the  redemption.     There  is  no  doubt 

her        separate     ,  .-  ,,  '  ,  ,. 

property  tbr  her  that  a  wife  may  sell  or  mortgage  her  separate  property  for 
husband's  debts,  }ier  husband's  debts.  Her  deed,  under  her  separate  exam- 
ana  a  sale  by  a  ..,,,  rr  •  r  i  -ii  -  p 
mortgagee,  or  mation  betorc  a  competent  omcer,  is  as  valid,  with  us,  as  it 
his  executors,  sjie  passed  her  estate  by  fine,  at  the  common  law.  Nor  do 

under  a  power   T  .  ,  .        .     J  ' 

contained  in  the  I  perceive  any  objection  to  her  competency  to  create  a  power 
mortgage  pur-  jn  ^}ie  mortgagee  to  sell,  in  default  of  pavment.  If  she  can 

suant  to  thestal-  °^=>         ..   .        '  -i         i  ,   • 

me,  is  a  valid  convey  upon  condition,  she  may  prescribe  the  terms ;  and  it 
[  *  145  ]  is  fit  and  convenient  that  the  mortgagor  *should  be  able  to 
bar  to  the  equity  confer  the  ppwer.  It  is  one  that  is  recognized  and  regulated 

of  redemption.      ,  ,.  11111  i'i 

by  statute,  and  is  supposed,  and  has  always  been  deemed,  to 
be  incident  to  the  power  to  mortgage. 

It  was  held,  in  Wotton  v.  flefe,  (2  Saund.  177.)  that  if 
baron  and  feme  grant  land  belonging  to  the  wife,  by  fine, 
with  covenant  of  warranty,  and  the  grantee  be  evicted  by 
paramount  title,  covenant  lies,  after  the  husband's  death, 
againet  the  wife,  upon  the  warranty.  This  shows  that  the 
wife  may  deal  with  her  land,  by  fine,  as  if  she  was  a.  feme 
sole ;  and  it  is  a  much  stronger  case  to  hold  her  bound  by 
the  covenant  of  warranty  than  by  the  power  to  sell. 
A  mortgage  The  power,  in  this  case,  was  duly  executed  by  the 
foreclosure6^™  executors,  without  the  heirs  of  the  mortgagee.  The  power 
chattel,  and' per-  in  question  was  given  to  the  mortgagee,  his  heirs,  executors, 
&c->  an(i  a  mortgage  interest,  before  foreclosure,  is  consid- 
ered  in  this  Court  as  a  chattel  interest,  and  personal  assets, 
and  belongs  to  the  executor.  Though  the  technical  fee  may 
descend  to  the  heir,  he  takes  it  in  trust  for  the  persona! 
116 


CASES  IN  CHANCERY.  145 

representatives      (Thornbrough  v.  Baker,  I   Ch.   Cos.  £.83.        1817. 
Tabor  v.    Grover,  2    Fern.  367.     .Fwfc   v.   Fisk,    Free,  in  •^*r~-^~*>. 
Chan.  11.     See  also  2  Fern.  193.     1  -4*fc.  605.)  DEMARE&T 

The  sale  was  in  1791,  and  one  of  the  children  and  heirs  \WNKOOP. 
of  the  mortgagee  had,  previously,  in  1788,  taken  a  release  of 
the  equity  of  redemption  from  Banta,  and  Nagel  and  wife. 
If  the  equity  of  redemption  resided  in  either  of  them,  at 
that  time,  there  is  no  pretence  for  the  present  suit  ;  if  it  did 
not,  but  was  in  the  plaintiffs,  then  this  purchase  was  no 
extinguishment  of  the  mortgage  debt.  The  purchase  by 
Daniel  Ludlow  was  of  the  equity  of  redemption. 

The  testimony  is  sufficient,  that  six  months'  notice  of  the 
sale  was  given  in  one  of  the  public  papers  ;  and  if  the  proof 
was  lame  on  this  fact,  yet  the  doctrine  in  Bergen  v.  Benne.t 
(1  Caines's  Cases  in  Error,  1.)  would  cure  it.  *It  was  there  [  *  146  J 
held,  that,  after  a  lapse  of  sixteen  years,  a  mortgagee  is  not 
to  be  heard  to  question  the  regularity  of  the  notice  of  sale  ; 
and  that  every  apparent  defect  was  to  be  supplied  by 
intendment. 

The  sale  is  proved  by  the  auctioneer,  but  no  deed  from  A  deed  exe- 
the  executor  is  produced,  except  one,  executed  for  greater  ^^^Jtee'n 
caution  by  the  executor,  nineteen  years  after  the  sale,  and  years  after  a 
which  presumes  a  deed  to  have  been  executed  at  the  time,  ttrfue'o  '* 


and  lost.  er    in    a    mort- 

As  between  the  parties  themselves,  and  where  there  is  no  f^if  u'0n  s°°her« 
intervening  right  repugnant  to  the  deed,  I  do  not  perceive  being  no  inter- 
the  objection  to  the  retrospective  operation  and  effect  of  the  ^AnSihvConn 
deed  produced.  A  deed  will,  in  many  cases,  have  relation  will,  after  such 
back  to  the  time  of  the  conclusion  of  the  bargain  and  sale.  presume°  thai  "a 
(Jackson  v.  Bull^  I  Johns.  Cas.  81.)  This  will  be  more  deed  was  given 
especially  admitted  in  this  Court,  which  often  considers  what  sate,16  when  °ii 
ought  to  be  done  as  done,  and  will  compel  the  specific  °us^  to  havc 

c    j       j  been  done,  and 

execution  of  deeds.  had  beeil  ^ 

The  defendants  are  bona  fide  purchasers,  for  a  valuable 
consideration,  under  the  title  of  Daniel  Ludlow,  the  pur- 
chaser at  such  sale.  They  appear  not  to  be  chargeable 
with  notice  ol  any  outstanding  equity  in  the  plaintiffs; 
and  I  am  of  opinion  that,  independent  of  the  bar  arising 
from  the  lapse  of  time,  the  plaintiffs  are  concluded  by  the 
execution  of  the  power  contained  in  the  mortgage.  There 
is  no  pretence  or  allegation  of  fraud  in  this  case,  and  though 
the  plaintiff  was  an  infant  when  the  sale  was  made,  she  was, 
notwithstanding,  barred  of  her  equity  ;  and  if  she  was  not, 
yet  ten  years  had  elapsed  after  her  disability  removed.  The 
statute  has  no  saving  clause  for  persons  laboring  under  „  n^frema£S 

J'          1     •!•  1  1  717 

disability,  but  it  is  peremptory  that  no  sale  under  such  power  no     exception, 
shall  be  defeated  to  the  prejudice  of  any  bona  fide  purchaser,  makeC  no    " 
in  favor  of  any   person  claiming  the  equity  of  redemption,  favor  of  i 

117 


none 


147*  CASES  IN  CHANCERY. 

1817.       Where  the  statute  makes  no  exception,  the  Court,  as  I  have 
v^^-v^-^^x  already  shown,  can  make  *none  on  the  ground  of  any  in- 
DEMAREST     herent  rquity  applicable  to  infants. 

WYIHCOOP          Thoigh   Ludiow,  the   purchaser   at  the   sale,  might  be 

Though  a  pur-  chargeable  with  notice  of  facts    (if  any  then  existed)   fatal 

chaser    at     a  to  his  title,  yet   a   bona  fide   purchaser   under  him  is  noi 

char'^eabLVith  affected  by  his  notice.     This  is  the  settled  rule.     (Jackson 

notice,   yet    a  \,  Given,  8  Johns.  Rep.  141.) 

chaser   Bunder      3.  There  was  a  third  objection,  to  which  I  think  weight 
him  is  not  af-  might   be    attached.      The    husband   was    to    redeem    the 
uotice.    y    'S  mortgage   by  paying   the  bond,  and   in   case   of  sale,  the 
surplus  was  to  be  rendered  to  him.     If  it  be   the  true  con- 
struction of  the  mortgage  deed,  that  the  equity  of  redemption 
was  intended   by  the  wife  to  be  reserved  to  the  husband 
alone,  it  seems  that  he  may  take  it,  and,  of  course,  dispose 
m  a  morteaffe  °f  ^>  as  ne  did  m  this  case ;  and  the  reservation  will  be 
by  husbancf and  good,  if  fairly   procured.     (Penne   v.   Peacock,   Cos.   temp. 
wife's  separate  Tallot,  42.     Brcnd  v.  Brend,  1    Fern.  213.)     But  as  I  am 
estate,  the  cqui-  not  quite  satisfied  in  such  a  construction,  and  of  the  evidence 
tfoi^ma^be^e-  °^  suc^  an  intention,  I  have  chosen  to  place  this  case  entirely 
served  to    the  on  the  other  points,  and  I  shall  consequently  dismiss  the  bill, 
frdtta  benny  There  were  other  objections  raised  to  the  suit,  on  which 
dispose  of  it.      I  give  no  opinion. 

There  has  been  some  doubt  in  my  mind,  how  I  ought  to 
uispose  of  the  costs ;    but  considering   the  special  circum- 
stances of  the   case,  and  that  the  plaintiffs  were  in  some 
degree  recommended  to  apply  to  this  Court,  in  the  opinion 
which  was  given    against    them   on  the  ejectment  at  law, 
(8  Johns.  Rep.  168.)  I  have  concluded,  that  the  bill  ought 
to  be  dismissed,  without  costs.     It  is  not  usual  to  give  costs, 
where  the  unfortunate  claimant  has  color  of  claim,  and  is 
Beainst*aCp"ab.  barred  by  lapse  of  time.     Costs  were  accordingly  refused  to 
tiff  having  color  \^Q  defendants,  in  Hovenden  v.  Annesley,  and  in  Lamar  v. 
barrecn>y'iap£i  Jones,  to  which  I  have  already  referred.     Independent  of 
rf  time,  the  lapse  of  time,  here  we  e  colorable  grounds  for  discussion 

Bill  dismissed,  without  costs. 


CASES  IN  CHANCERY.  *148 

1317. 

LlVlNGSTC* 

*P.  H.  LIVINGSTON,  sole  acting  Executor  of  P.  P.    LIV:NGST«W. 
LIVINGSTON,  against  LIVINGSTON  and  others. 

In  marshalling  assets,  the  estate  descended  to  the  heir  is  to  be  applied  to 
£he  payment  of  debts  before  the  estate  devised,  unless  devised  spe- 
cially to  pay  debts. 

After  making  his  will,  the  testator  conveyed  his  share  of  the  real  estate 
under  the  will  of  his  deceased  father,  and  which  made  part  of  the 
testator's  real  estate  devised  to  his  children,  to  trustees,  to  pay  the 
debts  of  his  father,  and  then  in  trust  for  the  devisees  of  his  father,  and 
their  representatives ;  held,  that  this  subsequent  conveyance,  being 
for  the  mere  purpose  of  paying  debts,  was  not  a  revocation  of  the 
will,  beyond  that  particular  purpose  ;  but  the  trust,  as  to  the  residue, 
is  for  the  devisees,  and  not  for  the  hen's  of  the  testator. 

Where  the  personal  estate  is  insufficient  for  the  payment  of  the  testa- 
tor's or  intestate's  debts,  a  Court  of  Probates,  under  the  act  for  that 
purpose,  may  sell  the  real  estate  of  which  the  testator,  or  intestate, 
died  seised ;  but  not  lands  held  in  trust  for  the  testator. 

The  heir  is  not  entitled  to  contribution  from  the  devisee,  towards  the 

satisfaction  of  creditors.  , 

Nor  does  equity  help  a  pecuniary  legatee  to  throw  a  debt  against  the 
personal  estate  upon  a  devisee  of  land. 

But  different  devisees,  in  respect  to  a  charge  on  all  the  estate  devised, 
must  contribute,  on  a  deficiency  of  assets,  in  proportion  to  the  value 
of  their  respective  interests;  as  to  pay  an  annuity  to  the  widow  of  the 
testator,  or  debts  of  the  testator,  remaining  unsatisfied  after  the  per- 
sonal estate,  and  all  the  real  estate,  undevised,  had  been  exhausted. 

THE  bill,  filed  in  January,  1803,  stated  that  Philip  Philip  October  Hand 
Livingston,  father  of  the  plaintiff',  being  seised  of  real  and  December^~ 
personal  estate,  in  the  island  of  Jamaica,  and  in  this  state,  in 
April,  1784,  made  his  will,  by  which,  after  giving  his  wife, 
in  lieu  of  dower,  1000  pounds,  his  plate,  furniture,  &c., 
and  an  annuity,  or  rent  charge  of  600  pounds  sterling, 
payable  out  of  all  his  estate  in  Jamaica,  and  elsewhere, 
during  her  life,  in  half-yearly  instalments,  bequeathed  to  his 
seven  children,  and  to  such  others  as  might  afterwards  be 
born,  each  4000  pounds  sterling,  to  be  paid  to  them,  re- 
spectively, when  they  came  of  age,  &c. ;  all  which  legacies 
were  to  be  paid,  and  made  payable  out  *of,  and  chargeable  [*  149] 
on,  his  real  and  personal  estate  in  Jamaica,  exclusively,  and 
not  on  any  other  estate.  The  will  directed,  that  his  children 
should  be  brought  up  and  educated  at  the  charge  of  his 
estate,  until  their  legacies  were  due  and  payable ;  and 
authorized  his  executors,  appointed  for  the  island  of  Jamaica, 
to  sell  all  his  real  estate  and  slaves,  out  of  the  parish  of 
St.  Mary's ;  to  complete  a  loan  of  8,500  pounds  of  H.  A. 
fy  Co.  of  London,  by  a  mortgage  on  his  estate,  or  to  borrow 
elsewhere  a  sum  not  exceeding  10,000  pounds  sterling,  and 

119 


I4»)  CASES  IN  CHANCERY. 

1817.       to  mortgage  his  estate  in  St.  Mary's,  for  the  repayment.     Aft 
^.^••--v-'-^^'  the  residue  of  his  estate  in  Jamaica,  real  and  personal,  he 
LIVINGSTON    gave  to  the  plaintiff  in  fee,  with  remainder  over,  in  case  he 
died  under  age,  and  without  issue.     And  all  his  estate  else- 

/»        i  *     i  i         /        T  -IT  i  i    • 

where,  out  of  the  island  of  Jamaica,  he  devised  to  his  seven 
children,  and  such  as  should  be  afterwards  born,  as  tenants 
in  common,  the  plaintiff,  being  his  eldest  son,  to  have  three 
shares,  and  the  other  children  one  share  each.  Five  persons 
were  nominated  and  appointed  his  executors,  for  the  island 
of  Jamaica,  and  to  be  guardians  of  his  children,  &c.  there  ; 
and  four  executors  were  nominated  executors  in  New-  York, 
for  his  estate  out  of  Jamaica,  and  to  be  guardians  of  his 
children  and  their  estates  out  of  that  island ;  and  each  of 
his  sons,  on  arriving  at  full  age,  was  to  become  an  executor 
generally. 

After  making  his  will,  the  testator  removed  to  Neiv-York, 
where  he  resided  until  his  death,  in  1787.  At  the  time  of 
making  his  will,  he  was  considerably  indebted,  and  after- 
wards, before  his  death,  contracted  other  considerable  debts. 
At  the  time  of  his  death,  the  testator  was  entitled,  by  the  will 
of  his  father,  P.  L.  of  Neiv-  York,  and  by  descent,  to  some 
parts  of  his  father's  estate.  The  testator,  and  three  other 
devisees  of  his  father's  estate,  in  1784,  conveyed  their  shares 
and  proportions  of  the  estate  of  P.  L.,  deceased,  to  some 
person,  in  fee,  to  the  use  of  Isaac  Roosevelt,  Robert  C.  Liv- 
[  *  1 50  ]  ingston,  and  the  testator,  in  *trust,  to  pay  the  debts  of  the 
said  P.  L.,  deceased,  and  then  "in  trust  for  his  devisees,  and 
their  representatives." 

On  account  of  the  infancy  of  Henry  A.  L.,  son  of  Abra- 
ham L.,  a  deceased  son,  and  devisee  of  -P.  L.,  an  act  of 
the  legislature  (a)  was  passed,  vesting  the  estate  of  P.  L., 
deceased,  in  Alexander  Hamilton,  Brockholst  L.,  John  H. 
L..  and  Thomas  Jones,  as  trustees,  in  fee.  The  bill  charged 
that,  after  the  payment  of  the  debts,  the  said  trustees  became 
seised,  as  to  one  undivided  part  of  the  residue  of  the  real 
estate  of  P.  L.,  "  in  trust  for  the  testator.  (P.  P.  L.}  or  his 
legal  representatives ; "  but  whether  the  will  of  the  testator 
was  revoked  as  to  such  part  of  P.  L.'s  estate .  the  plaintiff 
submitted  to  the  Court. 

The  will  was  proved  in  Jamaica,  and  in  New-York,  and 
the  plaintiff  is  the  sole  siting  executor  there  and  here.  The 
bill  further  stated,  that  the  plaintiff  had  applied  all  the  real 

(a)  The  preamble  to  this  act,  passed  the  25th  of  February,  1785,  states  the 
prayer  of  tne  testator.  P.  P.  L.,  for  the  act,  to  be.  that  the  estate  should  be 
conveyed  "  in  trust  to  convey  the  residue  of  the  real  estate  (if  any)  to  the 
several  persons  interested  therein,  according  to  the  proportions  they  are  en- 
titled to  of  the  same."  The  act  which  operated  on  the  real  estate,  declares 
that  the  residue  is  to  go  "  to  the  persons,  and  in  the  manner  and  proportions, 
specified  and  expressed  in  the  deed  of  trust,"  &c. 


CASES  IN  CHANCERY.  150 

and  personal  estate,  excepting  the  St.  Mary's,  towards  pay-  1817. 
raent  of  the  testator's  debts,  and  had  executed  a  mortgage  \^^~^~++^ 
on  the  St.  Mary's  estate,  for  10,000  pounds  sterling,  borrowed.  LIVINGSTON 
That  the  funds  proving  insufficient,  he  applied,  in  the  year  LIVINGS-FOX 
1794,  under  the  statute  of  this  state,  to  the  Court  of  Pro- 
bales,  and  obtained  an  order  to  sell  the  testator's  real  estate 
in  A7.  Y.  for  the  payment  of  the  debts.  That  under  this 
order,  he  had  sold  all  the  real  estate  of  the  testator  in  this 
state,  and  which  had  been  purchased  since  the  making  of 
the  will,  and  that  the  proceeds  were  still  insufficient  to  pay 
the  debts.  That  the  debts  of  P.  L.  having  been  discharged, 
and  the  trust,  above  mentioned,  survived  to  John  H.  L.  and 
13.  L.,  defendants,  they  were  now  seised  of  the  real  estate 
of  P.  L.,  in  trust,  *as  to  one  undivided  part,  for  the  legal  [*  151  ] 
representatives  of  the  testator  (P.  P.  L.}  That  the  plain- 
tiff has  paid  to  his  brothers  and  sisters  their  several  legacies 
of  4000  pounds  sterling  each,  and  has  paid  the  legacy  of 
1000  pounds  to  the  widow,  and  the  annuity  of  600  pounds, 
for  14  years,  during  her  life,  she  being  now  deceased.  That, 
wishing  to  discharge  all  the  debts  of  the  testator,  the  plaintiff 
had  applied  to  the  said  trustees,  to  convey  to  him  the  pro- 
portion of  the  estate  of  P.  L.,  deceased,  held  by  them  in 
trust  for  the  testator,  or  his  legal  representatives,  which  they 
refused  to  do,  alleging,  that  the  estate  of  P.  L.  ought  not  to 
be  applied  to  pay  the  debts  of  the  testator,  or  the  annuity  to 
his  widow,  but  that  the  same  ought  to  be  paid  out  of  the 
testator's  estate  in  the  parish  of  St.  Mary's,  devised  to  the 
plaintiff. 

The  bill  prayed  for  an  account  of  all  the  debts  owing  by 
the  testator,  at  his  death,  and  of  his  real  and  personal  estate, 
and  of  the  application  thereof  by  the  plaintiff;  and  that  the 
remaining  assets  of  the  testator  may  be  applied  in  payment 
of  his  debts ;  and  particularly,  that  the  proportion  of  the 
estate  of  P.  L.,  deceased,  might  be  declared  liable  to  the 
debts  of  the  testator,  before  the  estate  in  Jamaica,  devised  to 
the  plaintiff:  and  that  the  trustees  might  be  decreed  to  con- 
vey the  part  so  held  by  them  in  trust  for  the  testator ;  and 
that  part  of  the  annuity  payable  to  the  widow  might  be 
charged  on  the  real  estate  in  New-York ;  and  the  plaintiff  be 
indemnified,  &c. 

The  defendants,  John  H.  L.  and  B.  L.,  by  their  answer, 
filed  August  29,  1803,  admitted,  that  the  testator,  at  the 
time  he  made  his  will,  was  entitled,  under  the  will  of  his 
father,  P.  L.,  to  five  twenty-fourth  parts  of  the  real  and  per- 
sonal estate ;  that  the  debts,  except  a  claim  of  C.  L..  had 
been  discharged,  and  that  they  stood  seised  of  five  twenty- 
fourth  parts  of  the  residue  of  that  estate,  to  the  use  of  the 
legal  representatives  of  the  testator,  &c. 

VOL.  III.  16  121 


152*  CASES  IN  CHANCERY. 

1817.  The  other  defendants  answered,  in  1806,  admitting  most  *ol 

v^^x^-^^  the  facts  charged  in  the  bill ;  but  denying  that  the  plaintiff 

LIVINGSTON    had  paid  the  legacies  to  his  brothers  and  sisters,  and  insisting 

LIVINGSTON.    tnat  ^e  estate  of  P.  L.  was  not  liable  for  the  testator's  debts, 

exclusively  of  the  estate  devised  to  the  plaintiff;  and  they 

submitted  whether  the  true  estate  was  liable,  at  all,  to  the 

payment  of  the  debts,  or  to  contribute  to  the  annuity  to  the 

widow. 

Replications  were  filed,  but  no  witnesses  were  examined 
on  either  side. 

The  cause  was  brought  to  a  hearing  on  the  pleadings,  on 
the  14th  of  October,  1817. 

Harison  and  B.  Robinson,  for  the  plaintiff, 
and  Wells,  for  the  defendants. 


The  cause  stood  over  for  consideration  until  this  day,  when 
the  following  opinion  was  delivered  by  his  honor 

THE  CHANCELLOR.  The  great  object  of  the  bill  is  to  con 
vert  the  real  estate  held  by  two  of  the  defendants,  in  trust, 
for  the  legal  representatives  of  Philip  P.  Livingston,  deceased, 
and  of  whom  the  plaintiff  is  executor,  into  assets,  for  the 
payment  of  the  debts  still  outstanding  against  that  testator's 
estate. 

The  bill  does  not  state  the  amount  of  the  outstanding  debts, 
nor  who  the  creditors  are.  tt  only  avers  that  the  assets  already 
applied  for  the  purpose,  have  proved  "  utterly  insufficient  for 
the  payment  and  discharge  of  the  testator's  debts."  Here 
appears  to  be  scarcely  sufficient  ground  upon  which  the  Court 
ought  to  be  called  upon  to  act.  The  plaintiff,  however, 
wishes  to  make  the  trust  estate  chargeable  with  the  debts, 
(whatever  they  may  be,)  to  the  exemption  of  the  real  estate 
in  the  island  of  Jamaica,  which  was  devised  exclusively 
to  himself.  It  is  contended,  that  the  trust  estate  descended 
[*  153  ]  undevised  to  the  *heirs  at  law,  and  is,  therefore,  to  be  first 
chargeable ;  and  also,  that  it  is  included  in  the  order  of  the 
Court  of  Probates,  directing  the  testator's  real  estate  to  be 
sold  for  the  payment  of  debts. 

I  shall  waive,  for  the  present,  any  difficulty  as  to  the  want 
of  explicitness  and  precision  in  the  bill,  and  proceed  to  con- 
sider the  question  whether  the  plaintiff  has  any  equity  to  en- 
title him  to  charge  the  trust  estate  in  exclusion  of  his  own. 
in  inar shotting       j.  The  general  doctrine  of  the  Court,  in  marshalling  assets, 
<iaie<s'desclnded  is  admitted  to  be,  that  the  estate  descended  to  the  heir  is  to 

lo  the  heir  is  to 

be  applied  to  the  payment  of  debts,  before  the  estate  devised;   unless   devised  specially  to  pat 

debts. 

122 


CASES  IN  CHANCERY.  15? 

be  charged  with  the  debts  before  the  estate  devised;  (unless        1817. 
it  be  devised  specially  for  the  payment  of  debts ;)  for  if  the    •^^~^***^< 
devisee  was  to  be  made  liable,  in  the  first  instance,  it  would    LIVINGSTON 
defeat  the  gift,  and,  consequently,  the  intention  of  the  testa-   LIVINGSTON. 
tor.     This  rule  was  declared  by  Lord  Talbot  in  Pitt  v.  Ray- 
mond, (cited  in  2  Atk.  434.)  and  acted  upon  by  Lord  Hard- 
wicke,  in  Galton  v.  Hancock,  (3  Atk.  430.)  and  by  the  Court, 
in  numerous  cases  since.     (Davies  v.  Topp.  note  to  2  Bro. 
259.      Wride  v.  Clark,  note  to  2  Bro.  261.     Donne  v.  Lewis, 
2  Bro.  257.)     The  order  in  which  assets  were  to  be  applied 
is  distinctly  stated    by   Lord   Thurloio  in  Donne    v.  Lewis. 
Equity  will  even  marshal  the  real   assets  descended  to  the     Equity    \\-\\\ 
heir,  in  favor  of,  or  for  the  relief  of,  specific  legatees ;  but  it  !^ss°u   ™™«5' 
will  not,  for  such  a  purpose,  interfere  with  the  lands  devised,  ed  to  the  heir, 
unless  they  were  devised  subject  to  the  payment  of  debts.  fo/Uw'rdfefof 
(Hanby  v.  Roberts,  Arab.  128.      Clifton  v.  Burt,  1  P.  Wins.  speciSc     icga' 
678.    5th  resolution  in  Haslewood  v.  Pope,  3  P.  Wms.  322.  tees> 
Lord  H.  in  Forester  v.  Leigh,  Amb.    172.)     1  apprehend, 
however,  that  none  of  this  doctrine  on  which  the  counsel  for 
the  plaintiff  seemed  to  rely,  has  any  application  to  the  case. 
The  trust  estate  in  question  did  not  descend  undevised  to  the 
heirs  at  law,  but  it  passed  under  the  testator's  will,  as  part 
of  his  residuary  estate  out  of  the  island  of  Jamaica. 

The  testator  owned  the  property  in  question  when  he 
*made  his  will,  and  devised  a  certain  residuary  estate  (of  which  [  *  154  J 
this  formed  a  part)  to  his  seven  children,  in  unequal  propor- 
tions. He  afterwards,  with  other  devisees  of  the  testator's 
father,  conveyed  this  property  to  certain  persons,  in  trust  to 
pay  the  debts  of  his  father,  from  whom  he  derived  the  estate, 
and  then  in  trust  for  his  father's  devisees  and  their  repre- 
sentatives. In  other  words,  he  conveys  his  interest  in  his 
father's  estate,  in  trust,  to  pay  his  father's  debts,  and  when 
that  purpose  is  effected,  the  remainder  to  be  held  in  trust  for 
himself.  An  act  of  the  legislature  was,  afterwards,  passed, 
to  carry  this  trust  more  completely  into  execution,  and  the 
preamble  to  that  bill  states  the  prayer  of  the  petition  of  the 
testator  and  others  to  have  been,  that  the  surplus,  if  any, 
should  be  conveyed  by  the  trustees  to  the  several  persons  in- 
terested therein,  according  to  their  respective  proportions.  The 
idea  is  uniformly  kept  up  that  the  remainder  of  the  property 
so  conveyed  in  trust,  was  to  return,  and  to  be  held  and  en- 
joyed as  before.  The  act  itself  declares,  that  the  residue  was  to 
go  to  the  persons,  and  in  the  manner  and  proportions  specified 
and  expressed  in  the  deed,  in  trust.  The  bill  itself  states,  and 
the  answers  admit,  that  the  trustees  held  the  residuum  of  the 
estate  belonging  to  the  testator,  in  trus  ,for  the  testator  of 
his  legal  representatives. 

123 


154  CASES  IN  CHANCERY. 

1817.  This  conveyance  in  trust  was  no  revocation  of  the  will, 

^**~^~^/  beyond  the  mere  purpose  of  paying  the  debts,  because  there 
LIVINGSTON    was  no  alteration  of  the  estate  beyond  that  purpose. 
LIVINGSTON.        ^  was  tne  c^ear  and  manifest  intention  of  the  conveyance, 
and  other  acts  in  trust,  to  appropriate  the  property  in  pay- 
ment of  debts,  and  to  have  the  surplus  restored  to  its  former 
state  and  condition,  without  other  or  further  alteration.     Tii^ 
rules  respecting  these  partial  revocations,  are  deducible  from 
a  series  of  determinations  of  great  judges  in  equity.    The  ques- 
tion of  revocation  has  been  much  agitated,  and  laboriously  dis- 
cussed ;  but  there  is  no  one  who  has  spoken  with  more  clear- 
[  *  155  ]       ness,  or  treated  the  *subject  with  more  ability,  than  the  master 
of  the  rolls,  in  Harmood  v.    Oglandcr.  (6  Fesey,  199.)     He 
has  reviewed  all  the  cases,  and  given  us  the  collected  result 
of  his  uncommon  diligence  and  learning. 

A  subsequent  It  is  a  settled  principle  in  equity,  that  if  a  conveyance  is 
rTe^ator6  'm  on^  ^or  a  Part'a"  purpose  of  introducing  a  charge,  and 
trust,  for '  the  does  not  affect  the  interest  of  the  testator,  beyond  that  pur- 
debtT^and  the  Pose>  ^  ^s  OI^J  a  Pai"tial  revocation  of  the  will,  and  equity 
residue  for  the  will  hold  the  party  a  trustee,  not  for  the  heir,  but  for  the 
testator,  and  devisees.  A  devise  is  not  revoked  in  equity,  by  a  mortgage 

such  persons  3.3  *  o    o 

would  have  held  in  fee,  or  a  conveyance  in  fee,  for  the  payment  of  debts.     The 
the  same  before  mortgagee  is  a  trustee  for  the  devisee,  and  the  devisor  con- 

Ihe  conveyance,     .         &   &  ,      .,  ,  .  ,  n          /• 

is  not  a  revoca-  tinues  owner  as  betore,  subject  to  the  mortgage,     bo,  alter 
turn  of  his  will  a  Devise   if  a  conveyance  be  made  in  fee,  in  trust  to  sell  and 

beyond        such  •        '  J 

special  purpose,  pay  debts,  and  the  surplus  ot  the  personal  estate  to  the  tes- 
tator and  his  executors,  and  the  surplus  of  the  lands  to  him 
and  his  heirs,  this  is  no  revocation  in  equity ;  and  so  it  has 
been  determined.  If,  after  the  debts  are  paid,  the  trustee 
conveys  to  the  testator  and  his  heirs,  that  is  no  revocation ; 
and  if  the  estate  should  descend  to  the  heir,  he  would  be  only 
a  trustee  for  the  devisee.  This  has  been  so  held  by  Lord 
Harclwicke  and  Lord  T/mrJoiv ;  and  the  principle  is  settled. 
So,  if  the  testator  dies  without  taking  back  the  legal  estate, 
equity  has  only  to  decide  to  whom  the  beneficial  interest  be- 
longs, and  it  holds  the  party  a  trustee  for  the  devisee,  and 
not  for  the  heir,  and  directs  a  conveyance.  When  the 
testator,  after  making  his  will,  conveys  his  estate  in  trust  for 
the  payment  of  debts,  the  estate  is  still,  in  contemplation  of 
equity,  in  him  substantially ;  and  though  the  mode  amounts 
to  a  revocation  at  law,  (for  a  Court  of  law  has  nothing  to  do 
with  the  purpose,)  yet,  subject  to  the  debts,  he  remains,  in 
equity,  master  of  the  estate,  and  the  will  continues  to  operate 
iipon  his  interest.  If  he  calls  for  a  conveyance  of  the  legal 
estate,  his  heir  is  a  trustee  for  the  devisee ;  and  if  he  does 

f  *  156  }        not,  but  dies  in  the  mean  time,  his  trustee  holds  for  *the  de- 
visee, for  his  equitable  interest  still  continued.  (6  f^esey,  218 
—223.) 
124 


CASES  IN  CHANCERY. 


The  doctrine  thus  laid  down  by  Lord  Ahanley  may  also 
be  collected  from  a  series  of  other  decisions.  (Hall  v.  Dench, 
1  Fern.  329.  Vernonv.  Jones ,  2  Fern.  241.  Oglev.  Cook, 
reported  in  3  ,4i?A".  746.  2  5ro.  592.  Jackson  v.  Parker, 
Amb.  687,  and  the  general  observations  of  Lord  Hardwicke, 
in  Parsons  v.  Freeman,  3  ^4^Ar.  748,  and  in  Sparrow  v.  Hard- 
castle,  3  -4^r.  805.  Lord  Rosslyn,  in  Bridges  v.  Dutchess  of 
Chandos,  2  Vesey,jun,  428,  429.)  In  the  prior  case  of  W^7- 
Zirtws  v.  Owens,  (2  Vesey,jun.  599,600.)  Lord  Alvanley  had 
explained,  in  the  same  way,  the  principle,  which  he  shows 
was  evidently  established  by  Lord  Hardwicke,  in  Parsons  v. 
Freeman,  "  that  wherever  the  estate  is  modified  in  a  manner 
different  from  that  in  which  it  stood  at  the  time  of  making 
the  will,  it  is  a  revocation ;  but  wherever  the  testator  remains, 
after  a  conveyance  for  a  mere  particular  purpose,  as  the  pay- 
ment of  debts,  seised  of  the  same  estate,  and  disposable  by 
the  same  means,  without  any  fresh  modification,  there  is  no 
revocation." 

2.  As  I  have  considered  that  the  estate  in  question  was 
property  devised,  not  descended,  one  main  ground  of  the  bill 
has  failed,  unless  the  estate  can  be  considered  as  bound  by 
the  order  of  the  Court  of  Probates,  and  that  it  is  proper  for 
this  Court  to  lend  its  aid  in  carrying  that  order  into  effect. 

The  order  of  the  Court  of  Probates  was  made  on  the  28th 
of  April,  1795,  and  that  Court  was  authorized,  on  the  appli- 
cation of  executors  or  administrators,  to  examine  the  account 
of  the  personal  estate  and  debts  of  the  testator  or  intestate, 
and  if  it  should  find  the  personal  estate  insufficient,  and  that 
the  same  had  been  applied  toward  payment  of  the  debts, 
the  Court  was  directed  to  order  "  the  real  estate,  whereof 
such  testator  or  intestate  died  seised,"  to  be  sold,  &c.  (Act 
of  the  4th  April,  1786,  ch.  27.  s.  6.)  *This  was  a  special 
and  newly-created  power  over  the  real  estate  of  the  debtor, 
«nd  I  think  the  obvious  and  reasonable  construction  is,  that 
it  was  to  be  confined  to  the  legal  estate.  The  seisin  here 
.neant,  is  a  legal  seisin,  and  it  could  not  have  been  the  policy 
or  intention  of  the  statute  to  have  given  such  a  summary 
power  over  trusts,  which  cannot  be  reduced  to  possession, 
without  the  aid  of  a  Court  of  equity.  Such  an  interest,  resting 
in  equity  only,  and  charged  with  complicated,  arid,  perhaps, 
uncertain  and  unascertained  burdens,  is  not  the  fit  subject  of  a 
public  sale.  The  value  of  the  interest  may  not  be  susceptible 
of  a  ready  and  accurate  estimation.  It  would  lead  to  sale 
on  mere  speculation,  and  to  a  sacrifice  of  the  subject.  The 
case  of  an-equity  of  redemption  is  by  no  means  analogous. 
The  case  rests  on  grounds  peculiar  to  a  mortgage ;  for  the 
mortgagor,  while  in  possession,  and  before  foreclosure,  (and 

125 


1817. 


I'he  Court  of 
Probates. where 
the  personal  es- 
tate is  insuffi- 
cient for  the 
payment  of  th« 
debts  of  the  tes- 
tator or  intes- 
tate, cannot,  at 
the  instance  of 
the  executor  or 
administrator, 

[  *  157  | 

order  the  sale 
of  lands  held  in 
trust  for  the  tt., 
tator ;  his  pow 
er  under  the  aci 
is  over  the  legai 
estate,  or  thai 
of  which  the  tes 
tator  or  intes- 
tate died  seised 


157  CASES  IN  CHANCERY. 

1817.       ^e  decisions  have  gone  no  further,)  is  regarded  at  law,  as 

**^e-*^-^-/  well  as  in  equity,  as  the  real  owner  of  the  land.     In  this  very 

LIVINGSTON    case,  how  could  a  purchaser  know  what  to    bid  upon  the 

LIVINGSTON     equitable  interest  remaining  in  the  testator,  after  the  debis 

for  which  the  trust  had  been  created   were  discharged  ?     He 

had  no  means  of  knowing  whether  there  would  be  any,  and 

if  any,  what  residuum  of  interest  resulting  to  the  testator,  after 

the  trust  had  fulfilled  its  object.     It  is  perfectly  clear,  that  a 

mere  equitable  interest,  like  the  one  in  this  case,  was  not 

within  the  purview  of  the  statute,  or  the  jurisdiction  of  the 

Court  of  Probates. 

The  great  object  of  the  bill  has,  then,  failed.  This  trust 
estate  is  no  more  liable,  in  equity,  to  the  outstanding  debts, 
than  the  estate  in  Jamaica.  The  devisees,  in  the  one  case, 
(who  are  all  the  children,)  have  as  much  equity  as  the  plain- 
tiff, who  is  the  devisee  in  the  other. 

3.  There  is  another  prayer  in  the  bill,  which  is  for  indem 
nity ;  and  that  part  of  the  annuity  payable  to  the  testator's 
widow  may  be  charged  upon  the  trust  estate. 

[*  158]   ,        *The  widow's  annuity,  though  not  her  legacy,  was  made 
chargeable  upon  all  the  testator's  estate  in  Jamaica,  and  else- 
where ;  and  it  is  admitted  that  the  plaintiff  has  paid  the  an 
nuity  as  charged  in  the  bill. 

The  heir  is  The  heir  is  not  entitled  to  contribution  from  the  devisee 
contrfbution  tO  towards  satisfaction  of  creditors.  This  was  so  declared  by 
from  die  devi-  Lord  Hardwicke,  in  Palmer  v.  Mason,  (1  Atk.  505.)  and  in 
satisfaction Stof  the  case,  already  cited,  of  Galton  v.  Hancock.  Nor  will  the 
cred:tors.  Court  interfere  and  help  a  pecuniary  legatee,  to  throw  the 

ty  °heipeaeqpe-  debt  against  the  personal  estate,  upon  the  devisee  of  land, 
euniary  leg-atee  for  their  equities  are  equal.   (5th  resolution  in  Haslewood  v. 
debt  against  the  Pope.}     But  here  is  a  case  arising  between  different  devisees, 
personal  estate  in  respect  to  a  charge,  to  which  their  lands  were   equally 
"eeof land. 6U"  bound  by  the  will,  and  it  is  just,  that  the  whole  real  estate 
should  contribute,  in  due  and  ratable  proportions.     Thus,  in 
But  different  Carter   v.  Barnadiston,    (1  P.  Wms.  505.  509.   521.)    two 
8pecteeS'ton  "a  manors  were  devised,  the  one  to  A.  and  the  other  to  B.,  and 
charge  on    all  all  the  real  estate  was  charged  by  the  will,  with  payment  of 

the  estate  devi-    .,         ,    ,  „,  ,    ,     '  /.    .• 

sed,  must  con-  the  debts.     There  was  a  mortgage  debt  upon  one  of  the 
tribute,   on    a  manors,  and  Lord  Ch.  Cowver  held,  that  the  devisee  of  the 

deficiency      of       .1  IT,  j.  -i  A-         i_  i  i 

assets,  in  pro-  other   was  bound  to  contribute,  proportionably,  to  the  pay- 
portion  to  the  rnent  of  that  mortgage,  because  the  right  of  contribution  was 

value    of   their  ,  -77       mi  i  j      i        j    •       r 

respective    in-  gwen  by  the  will.     The  same  rule  was  declared  in  Long  v. 

lerests  Short,  (1  P.  Wms.  403.)  in  the  case  of  two  specific  devi 

sees  of  land.  The  lord  chancellor  said,  it  would  equally 
disappoint  the  intention  of  the  testator,  to  defeat  either 
devise,  by  subjecting  it  to  the  testator's  debts ;  and  there- 
fore he  held,  that  on  a  deficiency  of  assets,  both  estates 
I2fi 


CASES  IN  CHANCERY.  158 

must  contribute,  in  proportion  to  the  value  of  their  respec-        1817. 
live  premises.  ^-*^^~^-s 

The  will,  in  the  present  case,  is  silent  as  to  the  debts  ;  and    LIVINGSTON 
it  appears  to  be  very  equitable,  that  -the  debts  remaining  after   LIVINC'STON. 
the  personal  estate,  and  after  the  undevised  real  estate,  is     where  debts 
exhausted,  (and  which  is  alleged  to  be  the  fact  in  this  case,)  remain  unsatis- 
should  be  borne,  in  ratable  proportions,  by  all  *the  devisees,    c  r  £  ,Cgn  "j 
according  to  the  quantum  and  value  of  their  respective  in-  personai  estate, 
terests.     This  case  comes  within  the  principle  of  those  decis-  and  all  the  real 

riM        i  u  iU      j    !_.«.  it.  I  estate    not    de- 

ions.      Ihe  law  charges  the  debts  upon  the  real  estate.  vise(j    are  ex. 

I  shall,  accordingly,  declare,  that  the  trust  estate  is  not,  in  hausted,  the  de- 
equity,  chargeable  with  the  outstanding  debts,  any  more  than  j^e  Up  '"Ihe 
the  Jamaica  estate,  and  that  it  is  not  bound  by  the  order  of  deficiency  of 
the  Court  of  Probates  mentioned  in  the  bill;  that  the  trust 


estate,  however,  ought  to  contribute  ratably  with  the  estate  tum  and  value 

in  the  island  of  Jamaica,  belonging  to  the  plaintiffs,  to  the  °ive  interests?6" 

discharge  of  their  debts,  and  to  the  payment  of  the  annuity 

to   the   testator's    widow.     There    must,  accordingly,  be  a 

reference  to  a  master,  to  take  and  state  an  account  of  the 

debts  owing  by  the  testator  at  his  death,  and  of  his  real  and 

personal  estate,  and  of  the  application  thereof,  and  the  pay- 

ments which  have  been  made,  and  of  the  debts  which  still 

remain  unpaid,  their  nature  and  amount,  and  how  secured  ; 

and  that  the  master  take  and  state  an  account  of  the  amount 

of  the  annuity  of  600  pounds  a  year,  mentioned  in  the  will, 

paid  by  the  plaintiff,  and  the  times  when,  and  the  interest 

thereon  from  each  respective  payment,  and  also  the  amount 

of  the  legacies  due  to  the  respective  defendants,  and  of  the 

interest  thereon,  from  the  time  that  the  legatees  respectively 

came  of  age  ;  and  that  the  master  certify  the  amount  and 

proportion  that  each  devisee,  as  well  the  plaintiff  as  the  de- 

fendants, is  to  contribute  towards  the  payment  of  the  said 

annuity    and    of   the    said    outstanding   debts,    having   due 

regard  to  the  respective.  values  of  the  estate  in  the  island  of 

Jamaica,  belonging  to  the  plaintiff,  and  of  said  trust  estate, 

and  to  the  proportion  of  interest  which  each  of  the  dev- 

isees has  in  said   trust  estate  ;  that  the  defendants  John  II. 

and  B.  L.  account  before  the  master  for  the  rents,  issues, 

and  profits  of  the  trust  estate,  in  the  proportion  that  5  bears 

to  24,  and  that  the  master  make   them  all  just  allowances 

properly  chargeable,  in  such  proportion,  together  *with  their       [  *  1(50  q. 

reasonable  expenses,   (if  any,)  in  the  defence  of  this  suit, 

exclusive  of  the  taxable  costs,  and  that  the  question  of  costs 

and  the   question   relative  to  the  release  of  the  said  trust 

estate  by   the   said   trustees,   and    all   other   questions,   be 

reserved  until  the  coming  in  of  the  report. 

Order  accordingly. 

127 


160 


CASES  IN  CHANCERY. 


1817. 

R\GGS  RIGGS  and  others  against  J.  B.  MURRAY. 

MURRAY. 

This  Court,  notwithstanding  an  appeal  filed  in  the  cause,  may,  in  its  dis- 
cretion, award  execution  for  the  sum  decreed  to  be  paid  by  the  de- 
fendant, unless  he  brings  the  amount,  with  the  costs,  into  Court, 
within  a  certain  time  given  for  that  purpose,  to  abide  the  event  of  the 
appeal,  &c.,  or  give  security,  to  the  satisfaction  of  a  master,  to  pay  the 
amount  of  the  principal,  interest  and  costs,  on  the  affirmance  of  the 
decree,  or  such  part  thereof,  as  may  be  payable  on  the  decree  of  tho 
Court  above,  on  the  appeal. 

Decembers.  THE  petition  of  the  plaintiff  stated  the  decree  in  this 
cause,  (vide  vol.  2.  p.  565.)  of  the  30th  of  September  last,  by 
which  the  defendant  was  decreed  to  pay  to  the  plaintiffs 
81,836  dollars,  37  cents,  with  interest  and  costs.  That  on 
the  17th  of  October  last,  the  defendant  filed  an  appeal  from 
that  decree  to  the  Court  for  the  Correction  of  Errors,  &c. 
That  the  costs  have  not  been  taxed ;  and  that  the  sum 
decreed,  with  interest,  amounts  to  89,000  dollars,  exclusive 
of  costs,  and  for  which  the  plaintiffs  have  no  security. 
That,  the  plaintiffs  apprehend  that  the  cause  cannot  be 
brought  to  a  hearing  at  the  next  sessions'  of  the  Court  of 
Errors ;  in  which  case,  a  delay  for  more  than  a  year  will  take 
place,  during  which  time,  the  plaintiffs  "  apprehend  the 
occurrence  of  circumstances  by  which  the  whole,  or  the 
f*161]  greater  part  of  the  sum  decreed  to  the  plaintiffs,  will  *be 
lost  to  them  and  the  creditors  for  whom  they  are  assignees  in 
trust,  even  if  the  decree  should  be  affirmed."  The  plaintiffs, 
therefore,  prayed  for  an  order  that  the  plaintiffs'  solicitor 
may  proceed  and  have  their  costs  taxed,  and  that  the  plain- 
tiffs may  have  execution  for  the  sum  decreed,  &c.,  unless  the 
defendant  shall,  within  a  reasonable  time,  to  be  given  for  that 
purpose,  not  exceeding  20  days,  bring  the  principal,  interest, 
and  costs,  into  Court,  to  abide  the  event  of  the  appeal,  or 
give  security,  to  be  approved  of  by  a  master,  to  pay  the 
amount  of  the  decree,  and  costs,  on  affirmance,  or  sucn  part 
thereof  as  shall  be  payable  on  affirmance,  &c.  The  petition 
was  sworn  to  by  one  of  the  plaintiffs. 

Henry,  for  the  plaintiffs,  now  moved  for  an  order  pursuant 
to  the  prayer  of  the  petition  ;  and  in  support  of  this  motion, 
iA»te,p.  66.    he  relied  on  the  case  of  Messionier  \.  Kauman,^  and  on  the 
facts  stated  in  the  petition. 

Van  Vechten  and  Pendleton,  for  the  defendant,  read  the 
affidavit  of  the  defendant,  as  to  the  merits  of  the  decree ; 
and  they  opposed  the  motion  on  three  grounds :  I .  That 
128 


CASES  IN  CHANCERY.  161 

the  appeal  suspended  all  the  powers  of  the  Court  in  regard        1817. 
to  the  cause,  so  that  it  had  no  jurisdiction  to  proceed  in  it,  ^t^^*+^ 
or  to  award  execution,  after  the  riling  of  an  appeal.  RIGGS 

2.  That  the  decree  was  founded  in  a  mistake  as  to  the      MURRAT 
amount  of  the  sum  due. 

3.  That   the   special  circumstances  of  the   case   showed 
that  there  was  no  equity  in  the  application,  or  necessity  for 
it,  even  if  the  matter  rested  in  discretion. 

THE  CHANCELLOR.  The  first  point  has  been  repeatedly 
decided  in  favor  of  the  power  of  this  Court;  and  for  this 
purpose,  I  refer  to  the  case  of  Eden  v.  Winter,  derided  in 
1814,  (1  Johns.  Ch.  Rep.  77.)  to  BradweU  v.  Weeks, 
*decided  in  the  same  year,  (1  Johns.  Ch.  Rep.  325.)  and  to  [  *  162  " 
the  cases  of  Mesaionier  v.  Kauman,-\  and  Barrow  and  others  \  Ante,  p  66 
v.  Rhinclander,$  decided  in  October  and  November  last.  $  Ante,  p.  120. 
I  cannot  open  the  point  again  without  destroying  all  con- 
fidence in  the  uniformity  and  stability  of  the  principles  and 
practice  of  the  Court ;  and  I  shall  think  it  my  indispensable 
duty  to  continue  to  exercise  the  authority  I  have  so  repeatedly 
declared,  whenever  the  occasion  shall  appear  to  render  it  just 
and  expedient,  until  I  am  admonished  of  my  error,  or  directed 
otherwise  by  a  more  competent  power.  The  opinion  which 
I  have  formed,  upon  the  most  mature  deliberation,  is,  that  it 
rests  in  the  discretion  of  the  Court,  to  determine  when,  and 
to  what  extent,  the  mere  fact  of  filing  an  appeal  shall  be  a 
supersedeas  to  all  further  proceedings.  In  a  variety  of  cases 
which  may  occur,  it  will  be  found  essential  to  the  security 
of  private  right,  that  this  Court  should  possess  authority  to 
proceed,  notwithstanding  the  appeal.  Some  of  the  reasons 
pressing  upon  the  justice  of  the  Court,  are  mentioned  in  the 
several  cases  to  which  I  have  referred,  and  they  might  easily 
be  enlarged.  This  power  exists  to  the  fullest  extent  in  the 
English  Court  of  Chancery,  and  I  have  never  been  able  to 
discover  any  thing  in  the  constitution,  or  law  of  the  land, 
that  has  abridged,  in  this  respect,  the  powers  of  this  Court. 
Its  origin  is  as  pure,  its  trusts  as  sacred,  and  its  ends  as 
beneficial,  as  those  on  the  model  of  which  it  was  formed. 
Why,  then,  in  matters  of  private  right,  should  it  have  a 
diminished  jurisdiction  ?  The  power  in  question  is  no  im- 
pediment to  the  right  of  appeal.  It  was  never  so  intended. 
It  does  not  obstruct  the  exercise  of  that  right,  in  the  remotest 
degree.  Its  operation  is  only  to  prevent  those  abuses  and 
frauds  which  might  be  committed  under  the  mask  of  an 
appeal,  to  the  infinite  discredit  of  the  administration  of 
justice.  The  party  can  prosecute  his  appeal  with  equal 
facility,  though  it  be  not  allowed  to  work  a  supersedeas,  as  to 
every  ^particular  in  the  given  case.  If  he  succeeds  on  the  [*  163] 

VOL.  III.  17  129 


163 


CASES  IN  CHANCERY. 


1817.       appeal,  he  .will,  of  course,  annul  what  has  been  done  in  the 
v^~ x/->^x  mean  time,  and  be  reinstated  in  all  his  rights. 

RIGGS  The  Court  exercises  its  discretion  so  far  only  as  to  prevent 

MURRAY  impending  injury,  or  actual  abuse,  by  the  intermediate  delay 
It  permits  no  proceeding  after  an  appeal,  except  in  special 
cases  founded  on  the  reason  and  necessity  of  the  thing. 
Thus,  in  the  case  of  Green  \.  Winter,  already  referred  to, 
(in  which  the  learned  counsel,  who  now  contends  that  I  have 
no  such  power,  then  strenuously  contended  that  I  had,) 
I  refused  to  permit  the  master  to  proceed  to  lake  an  account 
under  a  decretal  order  appealed  from,  because  I  saw  no 
necessity  for  taking  such  a  step.  On  the  other  hand,  in  the 
)  Ante.  p.  no.  case  of  Barrow  v.  Rhinelander,^  the  parties  had  proceeded, 
for  a  long  time,  under  the  order  of  reference,  and  had 
brought  the  laborious  investigation  almost  to  a  conclusion, 
when  the  defendant  most  vexatiously  interposed  an  appeal. 
I  did  not  interfere  with  his  appeal,  but  I  directed  the  refer- 
ence to  be  completed.  That  case  very  strikingly  illustrates 
the  utility  and  necessity  of  the  discretion  which  is  claimed. 
The  appeal  was  there  avowedly  for  delay,  and  it  would  be 
degrading  to  the  character  and  justice  of  the  country,  if  a 
party  could,  at  any  time,  by  his  mere  veto,  (for  the  appeal 
is  only  filing  a  formal  notice  in  the  register's  office,)  suspend 
all  the  functions  of  this  Court,  in  the  given  case.  If  the 
Court  has  no  discretion,  and  no  power,  after  the  appeal  is 
filed,  a  party  might  safely  inform  the  Court,  at  once,  that  he 
appeals  for  delay,  and  that  he  intends  to  exhaust  his  adver- 
sary, or  to  depart  with  his  property,  before  the  appeal  can  be 
dismissed.  The  Courts  of  law  have  declared  that  they  have 
a  discretion  on  the  subject,  and  although  a  writ  of  error 
cannot  be  brought  until  final  judgment,  which  is  a  lien  on 
the  land,  and  although  the  defendant  is  held  to  bail  at  law, 
{  *  164  ]  yet  if  it  appear  by  the  party's  confession,  or  *otherwise,  that 
the  writ  of  error  is  for  delay,  the  judges  have  declared  that 
they  would  not  stay  execution. 

The  second  point  is  equally  untenable,  for  upon  this  ap- 
plication, the  decree  must  be  assumed  to  be  correct.  If 
there  has  been  a  mistake  in  the  sum  taken  from  the  master's 
report,  (which  cannot  be  conceded.)  the  proper  remedy  was 
by  application  for  a  rehearing.  The  merits  of  the  decree 
cannot  now  be  opened  or  discussed. 

The  third  ground  is  the  only  one  to  be  considered. 
There  is  no  immediate  danger  of  loss  from  delay,  but  it  is 
apprehended  that,  in  the  course  of  a  year  or  more,  there  may 
and  will  be  an  occurrence  of  circumstances  by  which  the  sum 
decreed,  or  the  greater  part  of  it,  will  be  lost.  If  I  am  to 
be  governed  by  those  circumstances,  they  ought  to  have  been 
fully  stated ;  but  without  them,  I  can  readily  believe  that  a 
130 


CASES  IN  CHANCERY.  164 

large  debt,  left  for  a  long  time  in  adverse  hands,  without  any        1817. 
real  or  personal  security,  may  become  endangered  by  the  \^^~^~^.^ 
ordinary  vicissitudes  of  business  and  the  casualties  of  time.        RIGGS 

1  presume  that  there  are  not  many  cases  of  a  decree  for  the 
payment  of  money,  in  which  the  bringing  of  the  money  into 
Court,  or  security  for  the  payment  of  it,  has  not  been  made 
a  condition  of  granting  an  application  to  stay  proceedings 
pending  an  appeal. 

Decrees  are  often  complex  and  multifarious  in  their 
provisions.  In  a  great  variety  of  them,  no  such  payment 
or  security  could  or  would  be  required,  and  the  proceedings 
would  stay,  as  of  course.  This  may  be  a  reason  why  the 
statute  has  not  made  any  general  provision  for  security  on 
filing  appeals  from  final  decrees,  as  it  has  on  error  from 
judgments  at  law. 

There  is  much  difficulty  in  undertaking  to  inquire  into  the 
pecuniary  circumstances  of  a  party,  in  order  to  determine 
how  far  danger  may  exist.  There  is  no  certain  rule  for  the 
discretion.  In  the  case  of  a  bill  of  review,  it  was  provided 
by  a  rule,  as  early  as  Lord  Bacon's  time,  that  if  the  decree 
was  for  the  payment  of  money,  the  money  must  be  *paid,  [*  165] 
before  the  bill  of  review  could  be  admitted.  This  is  a  rule 
of  the  Court  which  has  not  been  departed  from,  unless  it  be 
to  substitute  security  for  the  money,  instead  of  the  money 
itself.  (Savil  v.  Davey,  1  Ch.  Cos.  42.  Creiv  v.  Liddel, 

2  Bro.  P.    C.  24.  note.)     The  rule  there  is  general,  and 
applies  to  every  decree  for  the  payment  of  money.     Perhaps 
the  rule  here  ought  to  be  pretty  uniform,  and  not  leave  the 
discretion  too  much  open  and  arbitrary  in  each  case.     This 
is  a  decree,  simply  and  absolutely,  for  the  payment  of  money  : 
it  comes  completely  within  the  principle  declared  in  Mes- 
sonier  v.  Kauman,  and  the  party  swears  to  the  apprehension 
of  danger. 

But  the  necessity  of  immediate  security  is  certainly  not 
pressing,  and  the  plaintiffs  have  conducted  themselves  with  a 
remissness  in  the  prosecution  of  the  suit  that  showed  their 
confidence  in  the  pecuniary  stability  of  the  defendant.  I 
shall,  therefore,  give  to  the  defendant  all  the  indulgence,  as 
fo  time,  that  his  counsel  has  requested ;  and  I  am  the  more 
readily  induced  to  do  this,  as  he  may  wish  to  have  an  oppor- 
tunity to  take  the  opinion  of  the  Court  of  Appeals  on  this 
very  point ;  and  I  shall,  intentionally,  afford  him  that  facility, 
(>y  extending  the  time  to  the  1st  of  March. 

It  is,  accordingly,  ordered,  that  the  solicitor  of  the  plain- 
tiffs be  at  liberty,  at  any  time,  notwithstanding  the  appeal,  to 
have  the  costs  of  the  suit  taxed  against  the  defendant.  And 
_t  is  further  ordered,  that  the  plaintiffs  be  at  liberty  to  issue 
execution  for  the  81,836  dollars,  97  cents,  with  interest 

131 


165  CASES  IN  CHANCERY. 

1817.       thereon  from   the  first  day  of  July,  1816,  and  costs  to  be 
v^^-v^-^x  taxed   against  the  defendant,  according  to  the  course  and 

RIGGS  practice  of  the  Court,  unless  the  said  defendant  shall,  on  or 
MURRAY  before  the  1st  day  of  March  next,  at  his  election,  either  bring 
the  said  principal,  interest,  and  costs  into  Court,  and  deposit 
the  same  with  the  register,  or  assistant  register,  to  abide  the 
event  of  the  said  appeal,  and  the  further  order  of  this  Court. 
[  *  166  ]  or  give  real  or  personal  ^security,  to  the  amount  of  the  said 
principal  and  interest,  to  be  approved  of  by  Thomas  Bolton, 
one  of  the  masters  of  this  Court,  to  pay  the  said  principal, 
interest,  and  costs,  on  the  affirmance  of  the  decree,  or  such 
part  thereof  as  shall  be  payable  according  to  the  decree  on 
the  appeal;  and  in  case  execution  shall  issue  as  aforesaid, 
the  officer  be  directed  to  bring  into  Court,  and  deposit  with 
the  register,  or  assistant  register,  the  moneys  that  may  be 
collected  thereon  ;  and  the  register,  or  assistant  register,  is 
directed,  in  case  the  moneys  be  deposited,  either  by  the  party 
or  by  the  officer,  as  aforesaid,  to  place  the  same  at  interest,  by 
vesting  it  in  government  stock,  for  the  benefit  of  whom  it 
may  eventually  concern. 

Order  accordingly. 

IV.  B.  There  was  an  appeal  from  this  order  to  the 
Court  of  Errors ;  and  after  the  chancellor  had  assigned 
his  reasons  to  the  Court  of  Errors,  for  the  order,  the  point 
was  argued  in  connection  with  the  merits  of  the  cause  upon 
the  other  appeal ;  but  the  Court  of  Errors  gave  no  opinion  on 
the  appeal  from  this  order.  Pending  the  argument  on  the 
other  appeal,  the  counsel  for  the  appellant  applied  to  the 
chancellor  to  enlarge  the  time  for  giving  the  security  under 
this  order,  and  he  accordingly  enlarged  it  to  the  1st  of  May  - 
and,  in  the  mean  time,  the  decree  on  the  merits  was  reversed. 
The  power  of  the  Court,  as  declared  in  the  above  case,  there- 
fore, remains  unshaken ;  and  it  is  understood,  that  the 
judges  of  the  Supreme  Court,  as  far  as  they  had  considered 
the  question,  concurred  in  opinion  with  the  chancellor  on 
this  point. 
132 


CASES  IN  CHANCERY.  *JiH 

1317 

GRAY 

*GRAV,  Executrix  of  GRAY,  against  3.  B.  MURRAY.      MURRAT 

[Approved,  11  Paige  14.] 

G.  was  engaged  by  M.  as  a  supercargo  of  a  ship,  on  a  trading  voyage 
from  New- York  to  Madeira,  the  Cape  of  Good  Hope,  Madras,  and 
Calcutta,  and  thence  back  to  New-  York  :  by  the  written  instructions? 
to  G.,  by  which  much  was  confided  to  his  judgment  and  discretion, 
he  was  to  receive,  as  a  compensation  for  transacting  the  !  isiness,  two 
and  a  half  per  cent,  of  the  value  of  the  property  brought  home  for  the 
account  of  M.,  arising  from  the  proceeds  of -the  outward  cargo,  de- 
ducting duties,  &c.,  and  to  have  his  reasonable  expenses,  while  on 
the  voyage,  paid  out  of  the  cargo  ;  and  to  be  allowed,  also,  Jive  per 
cent.,  or  one  twentieth  part  of  the  net  profits,  on  its  termination.  G. 
performed  his  duty  from  New-York  to  Madeira  and  to  the  Cape  of 
Good  Hope,  but  was  taken  sick  at  the  latter  place,  and  obliged  to  leave 
the  ship,  and  died  on  his  return  homeward  in  another  vessel ;  having 
first  appointed  at  the  Cape,  B.  and  B.  (one  of  whom  had  been  a 
clerk  of  M.,  and  particularly  recommended  to  G.'s  attention,)  his  sub- 
stitutes, as  supercargoes  for  the  remainder  of  the  voyage,  agreeing  to 
pay  them,  for  their  services,  out  of  his  commissions.  The  ship  pro- 
ceeded to  Madras,  and  from  thence  returned  to  New-  York,  where  the 
homeward  cargo  was  delivered  to  M.,  who  cleared  a  considerable 
profit  on  the  voyage,  B.  and  B.  having  faithfully  performed  their  duty 
as  supercargoes  in  the  place  of  G.  It  was  held,  that  the  legal  repre- 
sentatives of  G.  were  entitled  to  the  full  compensation  stipulated,  as 
for  the  completion  of  the  voyage. 

Where  G.,  being  about  to  depart  from  New-York  on  a  voyage  to  the 
East  Indies,  gave  an  order  for  insurance  on  his  life,  to  the  amount  of 
3,000  pounds  sterling,  which  was  accepted  by  the  insurance  company 
in  London,  and  the  agents  of  M.,  who  undertook  to  complete  the 
business,  paid  the  premium  for  one  year,  and  received  the  policy  for  • 
that  amount,  to  continue  for  10  years,  at  the  election  of  G.  But  M., 
afterwards,  alleging  that  there  was  a  mistake,  without  the  knowledge 
or  consent  of  G.,  procured  this  policy  to  be  cancelled  by  the  insurers, 
and  another  policy  to  be  executed  by  them  for  450  pounds,  the  differ- 
ence of  premium  being  refunded  by  the  insurers.  It  was  held,  that 
M.,  by  thus  procuring  a  valid  and  existing  contract  of  insurance  to  be 
cancelled,  substituted  himself  for  the  insurers,  and  was  answerable  to 
the  legal  representative  of  G.,  who  died  within  a  year,  for  the  amount 
insured  by  the  original  policy,  after  deducting  the  premium. 

BILL,  filed    12th   of  July,  1811,  stating,  that  in  June,     Octobers,  u& 
1807,  the  defendant,  being  owner  of  the  ship  Egeria,  and  Decembe>' li 
having  loaded  her  for  a  trading  voyage  from  New-  York  to 
Madeira,  from  thence  to  the  Cape  of  Good  Hope,  thence  to 
Madras,   thence   to     Calcutta,    and    from    thence    back    to 
New-York,    he    hired    the    plaintiff's    testator,    to    go    as 
^supercargo  on  the  voyage,  and  by  his  letter  of  instructions,       [*  163  ] 
dated  the  27th  of  June,  1807,  he  instructed  the  testator,  that 
the  voyage  was  undertaken,  in  consequence  of  a  contract 
made  by  the  defendant,  with  the  house  of  Phelps,  Page,  and 
Co.,  in  Madeira,  by  which  he  was  to  ship  a  cargo,  chiefly 
provisions,  to  them,  and  to  receive  there  a  cargo  of  400 

133 


168  CASES  IN  CHANCERA. 

1817.  pipes  of  wine  ;  that,  after  the  testator  had  received  (in  board 
**^~^~+^  the  cargo  of  wine,  he  was  to  proceed  with  it  to  Calcutta, 
GRAY  touching  first  at  the  Cape  of  Good  Hope,  and  there  dispose 
MCRR\Y  °^  as  much  °f  the  wine  as  he  could,  at  the  prices  to  be 
authorized  by  P.  P.  fy  Co.  That  he  was  next  to  stop  at 
Madras,  and  there,  if  he  could,  make  further  sales  of  the 
cargo.  That  his  outward  voyage  was  to  terminate  at  Cat* 
cutta;  and  from  thence  to  return  to  New-York,  with  the 
investment  of  the  outward  cargo.  That  the  defendant,  in 
his  said  instructions,  stipulated  to  allow  and  pay  the  testator 
two  and  a  half  per  eent.  on  the  proceeds  of  the  return  cargo 
at  New-York,  and  Jive  per  cent.,  or  one  equal  twentieth  part 
of  the  clear  profits  of  the  voyage,  upon  the  arrival  of  the 
ship  at  New-York.  That  the  testator  sailed  on  the  voyage 
described,  as  supercargo,  in  June,  1807,  and  proceeded  to 
Madeira,  where  he  placed  the  outward  cargo  in  the  hands 
of  P.  P.  fy  Co.,  and  received  on  board  a  cargo  of  wines. 
That,  in  consequence  of  his  great  exertions  and  trouble,  his 
health  became  impaired,  and  P.  P.  fy  Co.,  in  consequence 
of  the  testator's  exertions,  were  induced  to  allow  him,  out  of 
their  own  separate  funds,  two  and  a  half  per  cent,  on  the 
sale  of  the  wines  shipped.  That,  proceeding  on  the  voyage, 
the  testator  touched  at  the  Cape  of  Good  Hope,  for  the 
purpose  of  selling  part  of  the  cargo,  if  found  advisable. 
That  the  master  of  the  ship,  a  man  addicted  to  liquor,  and 
of  bad  passions,  gave  information  that  the  ship  was  engaged 
in  some  improper  trade ;  in  consequence  of  which  she  was 
seized  and  detained  there  nine  weeks.  That  the  health 
of  the  testator,  from  constant  anxiety  and  fatigue,  became 
[  *  169  ]  *worse;  and  being,  in  consequence,  unable  to  pursue  the 
voyage,  he  exhibited  his  instructions  to  James  C.  Baehr  and 
John  Bryan,  (the  former  of  whom  had  been  brought  up  in 
the  counting-house  of  the  defendant,  and  went  out  on  the 
voyage,  and  the  latter  a  gentleman  of  acknowledged  ability 
and  integrity,  whom  he  met  with  there,)  and  appointed  them 
to  act  in  his  place,  as  supercargoes,  giving  them  a  copy  of 
his  instructions,  and  engaging  to  pay  them  a  specific  sum  for 
their  services  out  of  his  own  commissions  upon  the  voyage. 
That  the  ship  proceeded  on  her  voyage  to  Madras,  where 
the  residue  of  the  wines  were  sold.  That,  on  the  arrival  of 
the  ship  at  Madras,  it  was  currently  reported  and  believed, 
that  a  rupture  had  taken  place  between  Great  Britain  and 
the  United  States ;  and  the  supercargoes  so  substituted,  after 
consulting  their  friends,  deemed  it  imprudent  to  proceed  to 
Calcutta,  and  that  it  would  be  most  for  the  interest  of  all 
concerned  to  return  direct  to  New-  York,  where  they  arrived, 
accordingly,  in  December,  1808.  That  the  commissions 
upon  the  sales  of  wines,  so  allowed  the  testator  by  P.  P 
134 


CASES  IN  CHANCERY.  169 

$f   €>.,    amounted    to  1,238  dollars,  34  cents,    and   were        1817. 
invested   by  B.  and  B.  in  India  goods,  on  account  of  the   ^*~^~+.^' 
testator.     That  the  return  cargo  was  sold  at  New-York,  for         GRAY 
above  90,000  dollars,  and  the  profits  of  the  voyage  to  the      MURRAV 
defendant   amounted    to   above   40,000    dollars.     That  the 
defendant  was  perfectly  satisfied  with   the  conduct  of  the 
testator  while  he  acted  as  supercargo,  and  with  that  of  his 
substitutes  B.  and  B.     That  soon  after  the  departure  of  the 
ship  from  the  Cape  of  Good  Hope,  the  testator  embarked  for 
Boston,  and  died  on  the  passage,  having  made  his  will,  and 
appointed  the  plaintiff,  Robert  Hamilton,  of  Baltimore,  and 
George   W.  Murray,  of  New-  York,  his  executors ;  that  the 
two  latter  having  renounced  the  appointment,  the  plaintiff 
became  the  sole  acting  executrix.     That  the  testator  was  at 
considerable  charge  and  expense,  while  in  the  service  of  the 
defendant,  as  supercargo,  before  embarking,  *and  during  the       [  *  170  ] 
voyage,  and  paid  large  sums  on  his  account,  the  particulars 
of  which  were  stated  in  a  schedule  annexed.     That  the  tes- 
tator never  received  any  part  of  the  compensation  agreed  to 
be  paid  to  him  by  the  defendant,  except  some  trifling  sums. 

That  the  testator,  before  he  sailed  from  New-  York,  by  an 
application  in  writing  to  the  Pelican  Life  Insurance  Company 
of  London,  procured  an  insurance  on  his  fife,  for  the  sum  of 
3,000  pounds  sterling,  for  one  year ;  that  the  premium  was 
paid  by  the  testator,  and  the  policy,  duly  executed  by  the 
company,  and  binding  on  them,  was  transmitted  to  the  de- 
fendant, who,  pretending  that  the  policy  was  cancelled  soon 
after  it  was  made,  and  in  the  lifetime  of  the  testator,  withholds 
it  from  the  plaintiff,  and  refuses  to  account  for  the  money 
due  thereon,  in  consequence  of  the  death  of  the  testator 
within  the  year.  That  if  the  policy  has  been  cancelled,  it 
has  been  by  the  defendant,  without  any  authority,  and 
without  the  knowledge  or  consent  of  the  testator.  That  the 
defendant  refuses  to  reimburse  the  moneys  paid,  laid  out,  and 
expended  for  him  by  the  testator,  and  his  expenses,  and 
refuses  to  make  the  compensation  for  his  services,  or  to  pay 
the  plaintiff  the  proceeds  of  the  investment  of  the  com- 
missions allowed  him  by  P.  P.  fy  Co.,  or  to  deliver  up  the 
policy  of  insurance,  &,c. 

Prayer  for  an  account,  &c.,  and  that  the  defendant  de- 
liver up  the  policy,  or  if  cancelled,  to  pay  to  the  plaintiff  the 
amount  of  the  sum  insured,  with  interest  from  the  death  of 
the  testator ;  and  for  general  relief. 

In  January,  1812,  the  defendant  demurred  to  so  much  of 
the  bill  as  sought  compensation  for  services  subsequent  to 
tne  testator's  leaving  the  ship,  and  commissions  on  sales,  if 
any,  of  the  cargo,  and  as  sought  an  account  of  the  proceeds 
of  the  cargo,  or  commissions,  or  for  the  sale  of  wines  under 

13: 


171*  CASES  IN  CHANCERY. 

1817.  any  contract  with  P.  P.  fy  Co.,  and  payment  for  money 
v^»— •^~+^s  advanced  by  the  testator  before  the  voyage,  &c. 

GRAY  *The  answer  of  the  defendant  to  the  residue  of  the  bill  de- 

MURRAY  n^et^  l^at  tne  <estator  had  any  discretionary  power  as  to  the 
ship  or  voyage,  beyond  his  instructions,  dated  the  27th  of 
June,  1807,  which  were  set  forth.  The  answer  stated,  that 
the  testator's  health  was  indifferent  when  he  sailed  from  New- 
York  ;  that  he  was  of  an  irritable  temper,  and  the  ship  was 
seized  at  the  Cape  of  Good  Hope,  in  consequence  of  his 
indiscretion  in  quarrelling  with  the  captain,  &c. ;  that  the 
testator  quitted  the  service  of  the  defendant  at  the  Cape,  in 
consequence  of  illness,  and  died  on  his  return  to  the  United 
States.  That  J.  C.  Baehr  went  out  as  an  assistant  at  his 
own  request,  and  without  compensation ;  that  the  testator 
committed  the  charge  of  the  defendant's  business  and  con- 
cerns to  Baehr  and  Bryan,  for  which  he  was  to  pay  a  specific 
sum  for  their  services ;  and  that  the  substitution  was  made 
without  the  knowledge  or  consent  of  the  defendant.  The 
defendant  set  forth,  in  a  schedule  annexed,  all  the  expenses 
and  costs  incurred  by  the  testator  on  his  account.  The  de- 
fendant further  stated,  that  from  the  testator's  bad  health,  he 
doubted  of  his  life,  and  wished  to  be  indemnified  for  his  ad- 
vances on  account  of  the  testator,  by  an  insurance  on  his  life. 
That  he  suggested  it  to  the  testator,  and  understood  from  him 
that  he  had  applied  to  the  agent  of  the  London  Pelican  office, 
in  New- York.  That  the  defendant,  on  the  15th  of  July, 
1807,  wrote  to  his  agents,  T.  Mullet  and  Co.,  at  London.  In 
this  letter,  he  stated,  that  he  had  written  to  them,  on  the  first 
instant,  requesting  them  to  effect  insurance  on  the  supercar- 
go's commissions,  for  the  ship  Egeria}  in  order  to  secure  the 
defendant,  for  advances  to  him  ;  and  as  further  guaranty,  the 
testator  had  made  application  to  the  London  P.  Ins.  Com- 
pany, in  New-  York,  for  insurance  on  his  life  for  the  voyage ; 
that  they  had  sent  the  application  to  the  secretary  of  the 
company  in  London ;  and  he  begs  his  correspondents  to  call 
at  the  office  and  complete  the  business,  taking  into  their 
*  1 72  ]  hands  the  policy  and  adjusting  *the  premium,  and  charge  it 
to  the  defendant's  account.  That  on  the  7th  of  November, 
1807,  and  before  the  defendant  received  an  answer  to  this 
letter,  he  .vent,  with  George  W.  Murray,  to  the  agent  of  the 
Pelican  Insurance  Company,  in  New-  York,  and  found  that  the 
plaintiff  had  applied  to  insure  3,000  pounds  sterling,  on  his 
life,  which  application  had  been  forwarded  to  London,  and  an 
answer  returned  to  the  agent  here.  That  not  knowing  that 
the  testator  had  any  other  object  in  the  insurance,  than  the 
indemnity  of  the  defendant,  and  considering  the  premium 
high,  he  advised  with  G.  W.  M.,  as  the  particular  friend  of 
the  testator,  and  considering  it  would  be  more  for  the  interest 
136 


CASES  IN  CHANCERY.  172 

of  the  testator,  he,  with  the  advice  of  G.  W.  M.,  concluded  1817. 
to  effect  an  insurance  for  2,000  dollars,  and  drew  on  London 
for  36/.  6s.  3d.  sterling,  the  premium  for  one  year,  and  wrote, 
the  same  day,  to  his  correspondents  in  London,  stating,  that 
the  agent  at  New-  York  of  the  Pelican  Insurance  Company, 
had  received  instructions  from  his  office  to  receive  the  premi- 
um as  fixed  by  them,  and  that  they  would  take  the  risk  at  8/. 
4s.  5d.  per  cent.  That  the  defendant  had  directed  450/.  to 
be  insured,  and  had  paid  311.  4s.  lOd.  sterling.  That  they 
would  hold  that  policy,  and  the  one  on  the  commissions  of 
the  testator,  and  in  case  of  loss,  to  recover  the  same  for  the 
defendant  That  on  the  13th  of  November,  1807,  the  defend- 
ant wrote  to  the  plaintiff,  enclosing  a  copy  of  a  reply  from 
the  London  Pelican  Insurance  Company,  to  the  application 
of  the  testator ;  and  stating,  that  on  the  receipt  of  it,  he  had 
paid  the  premium  on  450/.  or  2,000  dollars,  being  167  dol- 
lars, four  cents,  and  had  instructed  his  correspondents  in 
London  to  receive  the  policy.  That,  pursuant  to  instructions 
from  the  testator,  the  defendant  had  procured  to  be  insured 
in  London  600Z.  sterling  on  his  commissions,  and,  by  an  agree- 
ment with  the  testator,  the  defendant  was  to  have  those 
policies,  as  a  security  for  his  advances,  which  were  not  to  ex- 
ceed 250  dollars  per  quarter  ;  that  the  amount  of  *the  pre-  [  *  173  ] 
mium  was  part  of  that  advance,  and  ought  to  be  deducted 
from  the  advances  to  the  plaintiff. 

That,  on  the  17th  of  November,  1807,  the  defendant  receiv- 
ed from  his  agents  in  London,  a  letter  dated  the  llth  of  Sep- 
tember, 1807,  stating  that  they  had  called  on  the  Pelican  In- 
surance Company,  and  were  informed  by  the  secretary,  that 
the  testator  had  proposed  an  insurance  on  his  life,  for  10 
years,  to  the  amount  of  3,000  pounds,  that  the  directors  had 
accepted  the  risk,  and  they  had  paid  the  premium  for  the  first 
year,  being  254Z.  5s.,  which  they  had  charged  to  the  defend- 
ant. That  the  policy  was  not  then  signed,  as  the  board  were 
not  to  meet  for  several  days.  On  the  19th  of  November, 
1807,  the  defendant  wrote  again  to  his  agents  in  London, 
acknowledging  the  receipt  of  their  letter  of  the  14th  of  Sep- 
tember, covering  the  copy  of  the  policy  on  the  testator's  com 
missions,  arid  mentioning  the  insurance  on  his  life  for  3,000r. 
sterling,  &c.  That  it  was  a  mistake,  as  they  could  see  by  the 
letter  from  the  agent  of  the  company  to  the  secretary ;  that 
the  premium  was  to  be  returned  in  toto,  and  no  further  sum 
to  be  continued  than  450?.  sterling,  on  which  the  defendant 
\iad  paid  the  premium. 

That,  on  the  10th  of  December,  1807,.  the  defendant  again 
wrote  to  the  plaintiff,  stating  that  he  had  received  from  his  cor- 
respondents in  London  a  copy  of  the  policy  on  the  testator's 
commissions ;  that  they  informed  him  that  they  had  received 

Vor,    III.  18  137 


173  CASES  IN  CHANCERY. 

1817.  from  the  Pelican  Life  Insurance  Company  a  policy  on  the 
^^-v^^x  testator's  life  for  one  year,  from  the  1st  of  July,  to  the  amount 
GRAY  of  3,000  pounds  sterling,  and  had  paid  the  premium  thereon 
MURRAY.  to  246Z.  15s.  sterling,  and  charged  one  quarter  per  cent,  com- 
missions for  effecting  the  same,  making  253/.  5,  sterling,  or 
1,125  dollars, 55  cents;  that  this  insurance  must  have  arisen 
from  mistaking  the  amount  proposed  by  the  testator  to  be 
sterling,  instead  of  dollars ;  besides,  the  defendant  says,  he 
understood  that  the  testator  only  contemplated  insuring 
2,500  dollars,  and  as  the  premiums  were,  in  the  defendant's 
[  *  174  ]  opinion,  *very  high,  and  2,000  dollars  would  cover  his  ad- 
vances, he  took  the  liberty  of  acting  as  he  thought  best  fov 
the  testator's  interest,  and  limited  the  sum  to  2,000  dollars, 
on  which  he  had  paid  the  premium,  and  had  forwarded  a  let- 
ter from  the  company's  agent,  directing  the  first  policy  to  be 
cancelled,  and  the  premium  to  be  returned.  That,  taking  it 
for  granted  that  the  first  policy  was  cancelled,  without  ex- 
pense, the  actual  amount  paid  by  him  for  premiums,  was  41 1 
dollars,  14  cents,  and  which  was  to  be  deducted  in  parcels 
from  each  quarter's  advance  to  the  plaintiff.  That,  on  the 
15th  of  February,  1808,  the  defendant  received  a  letter  from 
his  agents  in  London,  dated  the  22d  of  December,  1807,  in 
which  they  wrote,  in  regard  to  the  insurance,  "  Your  draft 
in  favor  of  Jenkin  Jones  has  been  honored ;  but  it  is  rather 
singular,  that,  in  your  previous  correspondence,  you  have  not 
stated  a  word  about  the  sum ;"  and,  from  the  representation 
made,  they  now  suppose,  that  dollars  had  been  mistaken  for 
pounds,  and  the  present  life  insurance  is  only  450  pounds ; 
that  the  office  had  very  properly  offered  to  cancel  the  former 
policy  and  return  the  premium,  but  they  add,  as,  in  the  course 
of  another  month,  they  expected  to  hear  from  the  defendant 
decisively,  in  answer  to  their  letter  of  the  llth  of  September, 
which  spoke  of  the  insurance,  they  think  it  better  to  leave  it 
until  then.  Meantime,  as  the  office  disliked  an  insurance  of 
more  than  3,000  pounds  on  one  life,  they  waive  the  insurance 
now  offered  and  paid  for,  till  the  policy  for  3,000  pounds  was 
cancelled.  That  the  defendant,  in  his  letter  of  the  15th  of 
July,  desired  them  to  pay  the  premium  and  receive  the  policy, 
but  the  sum  had  neither  then  nor  since  been  mentioned,  un- 
til the  450  pounds  now,  so  that  they  had  no  means  before 
of  pointing  out  the  error  to  the  office. 

The  defendant,  in  his  answer,  further  stated,  that,  having, 
through  his  agents,  obtained  a  return  of  the  premium  of  in- 
[  *  175  ]  surance,  he  wrote  the  plaintiff,  on  the  3d  of  *March,  1808, 
mentioning  that  the  first  policy  on  the  life  of  the  testator,  for 
3,000  pounds  sterling,  had  been  cancelled,  and  that  he  had 
received  the  last  policy  for  450  pounds,  or  2,000  dollars,  for 
one  year,  from  the  first  of  July,  with  the  privilege  of  renewal, 
138 


CASES  IN  CHANCERY.  175 

yearly,  for  nine  years  longer ;  and  that,  as  it  was  not  probable        jgn 
that  the  testator  could  return  by  the  end  of  the  first  year,  he  \^x— \^~^ 
should,  in  due  time,  order  a  continuance.  GRAY 

The  demurrer  was  argued  and  overruled  in  October,  1814; 
and  in  May,  1815,  the  defendant  put  in  another  answer,  set- 
ting forth,  at  length,  the  correspondence  which  had  led  to  the 
appointment  of  the  testator,  supercargo  of  the  Egeria,  as  the 
letter  of  instructions  and  a  history  of  the  voyage,  and  the 
agreement  with  P.  P.  8f  Co.  That  the  commissions  of  two 
and  a  half  per  cent.,  stipulated  by  them  to  be  allowed  the  tes- 
tator for  his  commissions  on  the  sales  of  the  wines,  were  to 
be  for  the  benefit  of  the  defendant,  not  the  testator.  The 
defendant  admitted  that  the  voyage  of  the  Egeria  yielded  a 
profit,  but  the  profit  would  have  been  much  greater,  had  his 
instructions  been  followed  and  executed  with  due  discretion, 
and  the  voyage  pursued  to  Calcutta ;  and  the  defendant  in- 
sisted, that  the  plaintiff  was  not  entitled  to  any  compensation 
for  services  rendered  by  the  substitutes  of  the  testator,  nor 
for  commissions  on  the  sales  of  the  wines,  nor  on  the  profits 
of  the  voyage,  and  that  the  defendant  was  not  bound  to  dis- 
close the  proceeds  of  the  cargoes.  He  admitted,  that  he 
might  have  expressed  an  unqualified  approbation  of  the  tes- 
tator's conduct,  and  of  that  of  his  substitutes,  B.  and  B.,  as 
being  governed  by  their  best  judgment ;  but  that  he  was  dis- 
satisfied with  the  testator's  conduct,  and  that  any  expressions 
of  approbation  thereof,  he  may  have  used,  must  have  been 
used  before  he  was  made  fully  acquainted  with  it,  and  under 
misapprehension  or  ignorance  of  the  character  and  circum- 
stances of  it.  He  denied  that  the  agreement  with  the  tes- 
tator had  been  so  substantially  performed  on  his  part,  as  to 
entitle  him,  *or  any  other  person,  to  receive  any  compensa-  [  *  176 
tion  for  what  had  been  done. 

That  goods  shipped  from  Madras,  on  account  and  risk 
of  the  testator,  had  been  received  and  were  delivered  to 
George  W.  Murray,  as  his  agent ;  that  the  defendant  had 
discovered  that  the  proceeds  of  the  wine,  to  the  amount  of 
1,238  dollars  and  34  cents,  had  been  applied  to  the  purchase 
of  those  goods,  as  being  commissions  which  the  testator 
claimed  under  a  contract  with  P.  P.  fy  Co. ;  but  that  such 
commissions  constituted  a  part  of  the  defendant's  profits,  and 
that  the  plaintiff  was,  therefore,  accountable  for  that  sum. 
That,  to  indemnify  the  defendant  for  his  advances  to  Mrs.  G., 
and  as  the  death  of  the  testator  might  prevent  his  earning 
the  commissions,  it  was  proposed  by  the  defendant,  and  agreed 
to  by  the  testator,  that  the  testator's  life  should  be  insured 
for  the  defendant's  security.  That  the  cancelling  of  the 
policy  for  3,000  pounds  had  been  ratified  and  approved  by 
the  plaintiff  and  George  W.  Murray.  That  the  defendant  is 

139 


76  CASES  IN  CHANCERY. 

1817.       willing  to  account  with  the  plaintiff,  excluding  any  claim  for 
^^^s~*^s  compensation  for  services  by  the  testator,  as  supercargo,  and 
GRAY        is  willing  to  credit  the  plaintiff  with  the  net  proceeds  of  the 
MURRAY,      insurance  for  450  pounds  sterling. 

It  is  unnecessary  to  detail  the  evidence  taken  in  the  cause. 
The  facts  not  admitted  by  the  pleadings,  are,  in  substance, 
stated  in  the  opinion  delivered  by  the  Court. 

The  cause  was  brought  to  a  hearing  on  the  3th  of  Octo- 
ber last. 

Welh  and  B.  Robinson,  for  the  plaintiff. 

*$.  Jones,  jun.,  and  D.  B.  Ogden,  for  the  defendant. 

December  is.        The  cause  stood  over  for  consideration  until  this  day,  when 
the  following  opinion  was  delivered  by  his  honor 

*  177  ]  *THE  CHANCELLOR.  1.  The  first  question  is,  whether  the 

plaintiff  is  not  entitled  to  recover  the  stipulated  compensation 
which  her  husband  was  to  receive,  on  the  completion  of  the 
voyage,  for  his  services  as  supercargo. 

The  instructions  under  the  hand  of  the  defendant  stated,  that 
the  testator  was  to  receive,  for  transacting  the  contemplated 
business,  two  and  a  half  per  cent,  of  the  value  of  all  propety 
brought  home  for  the  account  of  the  defendant,  arising  from 
the  proceeds  of  the  outward  cargo,  after  deducting  the  duties 
and  other  expenses,  &c.  That  he  was  to  have  his  reasonable 
expenses,  while  on  the  voyage,  paid  out  of  the  cargo ;  and  that 
he  was  to  have  a  share  of  five  per  cent.,  or  one  twentieth 
part  of  the  net  profits  of  the  voyage,  at  its  termination. 

It  is  contended,  that  the  services  were  substantially  and 
beneficially  rendered  by  the  supercargo  and  his  substituted 
agents,  and  that  these  services  received  the  approbation  of 
the  defendant. 

It  is  admitted,  that  the  voyage  was  successful,  and  yielded 
a  profit,  though  the  defendant  will  not  disclose  the  amount 
of  the  profits.  The  answer  says,  that  the  defendant  may 
have  expressed  his  approbation  of  the  conduct  of  the  substi- 
tutes ;  and  a  witness  heard  him  acknowledge,  after  the  return 
of  the  ship,  that  the  testator  had  acted  as  well  as  he  could 
under  the  circumstances,  and  that  the  conduct  of  the  sub- 
stitutes was  satisfactory. 

There  are  other  circumstances  from  which  we  may  infer 
the  defendant's  admission  that  the  commissions  were  due, 
though  the  supercargo  had  left  the  ship  at  the  Cape  of  Good 
Hope.  Thus,  in  the  defendant's  account  current,  annexed 
to  his  answer,  he  adds,  on  the  credit  side,  of  the  date  of  the 
29th  of  September,  1808,  when  he  had  received  information 
140 


CASES  IN  CHANCERY.  177 

of  Mr.  Gray's  death,    "By  prem.  on  2,000  dollars,  Bryan       1817. 
and  Baehr  com.  charged,  they  being  to  receive  so  much  out  of   v-^~v— v— 
Mr.  Gray's  com."  GRAY 

The  defendant,  at  that  time,  knew  of  the  substitution,  *and      MURRAY 
evidently  approved  of  it.     So,  also,  it  appears,  that  shortly 
after  the  return  of  the  Egeria,  he  told  a  witness  that  he  had       [  *  178  j 
sold  the  pepper  at  a  handsome  profit,  and  which  was  to  the 
advantage  of  the  testator,  or  his  widow. 

The  conduct  of  the  testator,  from  the  commencement  of 
the  voyage,  until  he  was  obliged  to  retire,  from  extreme  sick- 
ness, was  faithful  and  judicious,  and  the  equity  of  the  claim 
on  the  part  of  the  plaintiff  is  striking  and  impressive.  There 
was  great  confidence  reposed  in  the  supercargo,  and  an  en- 
larged discretion  given  him  by  the  instructions.  He  was  rec- 
ommended to  govern  himself  at  Calcutta,  by  information  he 
might  collect  there,  as  to  the  expediency  of  a  voyage  to  Ba- 
tavia.  He  was  authorized  to  send  the  ship  even  to  Canton 
or  Manilla,  and  was  recommended  to  substitute  Baehr  for 
himself,  as  to  such  secondary  voyage,  and  Baehr  was  very 
specially  recommended  to  his  attention  and  confidence.  He 
was  instructed  to  select  another  house,  in  the  hands  of  which 
he  was  to  place  the  outward  cargo,  in  case  he  should  find  the 
house  of  Phelps,  Page,  and  Co.,  unsafe ;  and  all  disburse- 
ments, by  the  captain  or  otherwise,  were  to  be  approved  of  by 
him,  exclusively. 

Under  all  this  power  and  confidence,  the  supercargo  ac- 
quitted himself  with  judgment  and  probity,  and  it  was  not 
the  least  evidence  of  it,  that  he  should  have  selected  this 
very  Mr.  Baehr  as  one  of  the  substitutes  to  whom  he  trans- 
ferred his  trust.     Baehr  and  Bryan  were  appointed  by  him 
to  act  in  his  place,  as  supercargoes,  and  they  accepted  the 
duty,  and  promised  to  perform  it,  for  a  compensation  to  be      G.  was  en 
paid  by  him  out  of  his  commissions.     They  did  perform  the  fha/ 0*^,,^  ofa 
trust,  and  to  the  approbation  and  benefit  of  the  defendant.,  ship,  as  super- 
It  would  appear  to  be  unreasonable  and  unjust,  *that  the  de-       [  *  179  j 
fendant  should   receive  these  beneficial  services  of  the  testa-  *?rj°>  on  a  iroa~ 
lor  and  his  substitutes  gratis.     The  testator  was  prevented,  and  was  tore- 
by  the  act  of  God,  from  rendering  all  the  services  of  the  voyage  ceive>  as  a  C9'"- 

•      i  •  T  ,1,1  1°      pensation  of  his 

in  his  proper  person.  1  am  aware  that  the  common  law  was  services,  two 
harsh  on  this  point ;  but  I  cannot  believe  there  is  any  such  and  a  half  Pcr 

.    ,        .  ,     l    .        ,  .         ,  ,       .  f.  .     •>  cent,  on  the  pro- 

principle  either  in  the  marine  law,  or  in  the  law  of  this  Court,  ceedsoftheout- 

The  general  rule  of  the  common  law  is,  that  if  a  contract  Mwdcaigo,and 
be  undertaken,  and  partly,  but  not  entirely,  performed,  the  ore  twentieth  of 

the  not    profits 
of  the  voyage, 

un  its  termination.  He  fell  sick,  during-  the  outward  voyage,  and  left  the  ship,  having  appointed  anolae 
supercargo  in  his  place  for  the  residue  of  the  voyage,  and  agreed  to  pay  him  out  of  his  own  commissions 
It  was  held,  that  the  legal  representatives  of  G.,  who  died  on  his  return  home,  were  entitled  to  the  full 
compensation  stipulated,  the  ship  having  successfully  performed  the  voyage,  and  which  produced  a  large 
profit  to  M.,  and  the  substitute  of  G.  having  faithfully  performed  his  duty,  as  supercargo. 

141 


1.79  OASES  IN  CHANCERY. 

1817.       Party  cannot  recover  his  wages  or  hire,  as  for  a  partial  per- 
*^r~^~*^s  formance  of  it,  pro  rota.     (Cowntess  of  Plymouth  v.  Throg* 
GRAY         morton,  1   *SWfr.  65.)     Thus,  in  Cutter  v.  Powell,   (6   Term 
M  ^-  J?ep.  320.)  the  defendant  gave  a  note,  promising  to  pay  the 

plaintiff's  intestate,  30  guineas,  provided  he  proceeded,  con- 
tinued, and  did  his  duty,  as  second  mate  in  the  ship,  on  a 
voyage  from  Kingston  to  Liverpool.  The  intestate  entered 
on  the  voyage,  did  part  of  the  service,  and  died  on  the 
passage.  It  was  held  by  the  K.  B.,  that  the  plaintiff  was 
not  entitled  to  recover  either  upon  a  quantum  meruit..  be- 
cause the  express  contract  did  away  all  implied  ones,  or 
upon  the  express  contract,  because  it  was  not  fulfilled.  The 
performance  was  a  condition  precedent,  and  it  was  an  entire 
contract.  But  in  this  very  case,  light  breaks  in  from  another 
quarter,  to  console  us  for  the  severity  of  the  doctrine.  If 
the  party  hired,  wilfully  or  voluntarily  abandons  his  contract, 
after  a  part  performance,  as  in  McMillan  v.  Vanderlip,  and 
Jennings  v.  Camp,  (12  Johns.  Rep.  165.  13  Johns.  Rep. 
94.)  there  is  equity  in  denying  him  a  ratable  compensation ; 
but  we  are  speaking  of  cases  in  which  the  party  was  pre- 
vented from  an  entire  performance,  by  the  act  of  God ;  and 
in  the  cases  cited  from  the  Term  Reports,  the  Court  admitted, 
that  if  the  commercial  usage  had  been  to  recover  in  such  case 
ratably,  that  usage  would  have  controlled  their  opinion. 
'  *  180  ]  The  old  rule  was,  that  if  a  servant  agreed  to  receive  *large 
wages,  on  condition  of  serving  a  whole  year,  and  he  died  in 
the  middle  of  the  year,  his  representatives  recovered  nothing. 
But  it  was  admitted,  in  that  case,  that  they  now  recover  pro- 
portionably,  because  the  servant  is  understood  to  be  hired, 
with  reference  to  the  general  understanding  on  this  subject, 
which  is,  that  he  shall  be  entitled  to  ratable  wages,  though 
he  be  disabled  from  serving  the  whole  year. 

In  Chandler  v.  Grieves,  (2  H.  Black.  606.  note,}  it  was 
certified  to  the  C.  B.,  to  be  the  admiralty  usage,  that  if  a 
seaman  be  disabled  in  the  course  of  the  voyage,  he  was 
entitled  to  wages  for  the  whole  voyage,  though  he  had  not 
performed  the  whole.  But  Mr.  Abbott  (Treatise  on  Ship- 
ping, p.  355,  356.)  says,  there  is  no  general  decision  on  the 
subject  in  our  law  books ;  and  that  in  certain  foreign  ordi- 
nances, to  which  he  refers,  it  is  not  clear  whether  the  payment 
of  seamen's  wages,  on  the  death  of  a  seaman  during  a  voyage, 
is  to  be  understood  of  a  sum  proportionable  to  the  time  of 
his  service,  or  of  the  whole  sum  that  would  have  been  earned, 
if  he  had  lived  to  the  end  of  his  voyage. 

In  Sims  v.  Adm.  of  Jackson,  (1   Peters' 's  Adm.   157.)  it 

was  decided,  in  the  Circuit  Court  of  the   United  States,  for 

Pennsylvania,  that  full  wages  for  the  entire  voyage  were  due 

D  the  representative  of  a  seaman,  hired  for  the  whole  voyage, 

42 


CASES  IN  CHANCERY.  180 

at  30  dollars  per  month,  and  who  died  when  it  was  only  half         1817. 
perfoimed.     The  decision  was  grounded  on  what  was  un~  x^^-v^--.*^ 
derstood  to  be  the  usage  of  the  English  admiralty,  and  the        GKAY 
decision  in  the  laws  of  O'leron.     But,  afterwards,  in  Natter-      MURRAY 
strom  v.  Smith,  (2  HaWs  L.  Jour.  359.)  the  District  Court 
of  Massachusetts,  after  an  able  and  learned  review  of  the 
marine  law,  dismissed  a  claim  for  wages  of  a  seaman  beyond 
the  time  of  his  death,  when  the  engagement  ivas  by  the  month. 

These  cases  are  not  exactly  analogous  to  the  one  before 
me ;  but  my  object  is  to  show  the  spirit  and  liberality  of  the 
marine  law  on  the  subject. 

*Cleirac,  in  his  commentary  on  the  Judgments  of  Oleron,  [#  181  ] 
(Judgmens  d*  Oleron,  art.  7.)  mentions,  that  the  Spaniards, 
in  their  West-India  trade,  had  a  custom,  that  if  a  seaman 
fell  sick,  he  must  provide  a  substitute  or  lose  his  wages ;  but 
that  by  the  ordinances  of  Charles  5th,  if  a  seaman  died  on 
the  outward  voyage,  his  representatives  were  entitled  to  a 
moiety,  and  if  on  the  homeward  voyage,  to  his  entire  wages  ; 
and  he  says,  this  was  according  to  the  Consolato  del  Mare. 
By  the  provisions  of  that  celebrated  Code,  if  a  mariner  died 
on  his  outward  voyage,  his  heirs  were  entitled  to  a  moiety  of 
his  wages,  and  if  he  had  received  all  his  wages  before  his 
death,  his  heirs  were  entitled  to  retain  the  whole.  (Consulat 
de  la  Mer,  par  Boucher,  ch.  129.)  The  ordinance  of  Leivis 
14th  (art.  13.  and  14.  des  Loyers  des  Matelots,  and  Valin, 
Ibid.}  makes  the  discrimination  already  alluded  to,  when  a 
seaman  dies,  between  an  engagement  by  the  month,  and  for 
the  voyage,  and  gives  only  ratable  wages  in  the  first  case,  but 
entire  wages  in  the  latter,  if  he  dies  on  the  return  voyage. 
There  is  another  part  of  the  14th  article*  of  the  ordinance,' 
quite  applicable,  in  principle,  to  the  point  before  me.  If  the 
seaman  engages  for  a  proportion  of  freight  or  profit,  his  entire 
portion  shall  be  recovered  by  his  heirs,  provided  he  died 
after  the  voyage  was  commenced.  "  And  can  it  be  just, 
that  the  seaman  who  dies  shortly  'after  the  departure  of  the 
ship,  and  has  rendered  very  little  service,  should  take  the 
same  portion  of  the  freight  or  profit  that  he  would  have  been 
entitled  to,  if  he  had  served  out  the  voyage?"  To  this 
question,  Pothicr  answers,  (du  Louage  des  Matelots,  No.  193.) 
that  he  would  not  have  received  but  such  a  proportion  of  the 
freight  or  profits,  as  a  compensation,  however  inadequate, 
for  his  services,  though  accidents  had  prolonged  the  voyage 
for  a  great  length  of  time ;  and  it  is  therefore  reasonable,  that 
his  heirs  should  receive  the  entire  part  when  his  term  of 
service  has  been  abridged  by  his  death. 

*lf,  in  addition  to  these  liberal  usages  of  the  marine  law,       [  *  182  ] 
and  which,  I  apprehend,  are  to  be  met  with  in  the  maritime 
law  of  all  commercial  nations,  we  attend  to  the  special  cir- 

143 


182  CASES  IN  CHANCERY. 

1817.       cumstances  of  this  case,  and  consider  that  the  entire  services 

^*r~^-^^s  of  the  voyage  have  been  rendered  by  the  supercargo,  and  his 

GRAY        agents,  competently  and  discreetly  selected  by  him ;  that  they 

M  v-  acted  under  his  appointment,  and  looked  to  him  exclusively 

for  payment :  that  they  conducted  the  voyage  to  a  prosperous 

issue,  by  which  a  large  profit  was  produced  to  the  defendant ; 

that  he  approved  of  their  conduct,  and   never  questioned 

either  the  necessity  or  wisdom  of  the  substitution ;  and  that 

he  had  since  intimated  that  a  commission  was  due,  there  can 

scarcely  remain  a  doubt,  under  all  these  considerations,  that 

the  plaintiff  is  entitled,  ex  &quo  et  bono,  to  the  stipulated 

compensation. 

But  the  plaintiff  claims,  not  only  the  compensation  men- 
tioned in  the  instructions,  but,  also,  the  two  and  a  half 
per  cent,  on  the  sales  of  the  wine,  in  pursuance  of  the 
agreement  of  the  5th  of  August,  1807,  between  Phelps, 
Page,  and  Co..  and  the  testator.  This  agreement  was  ac- 
cording to  the  allowance  contained  in  the  first  proposals  of 
the  defendant  to  Phelps,  Page,  and  Co.,  of  the  27th  of 
December,  1806,  and  their  answer  of  the  14th  of  February 
following.  It  was  an  allowance  which  the  defendant  had 
procured  for,  and  in  the  name  of  the  supercargo,  for  the 
voyage  in  contemplation,  and  before  he  had  selected  the 
testator  for  that  trust.  It  was,  in  the  first  instance,  under 
his  control,  and  for  his  benefit.  He  had  a  right  to  make 
such  contract  as  he  pleased,  with  the  future  supercargo,  in 
respect  to  the  compensation  he  was  to  receive ;  and  I  am 
inclined  to  think  that  the  testator  could  claim  no  more,  or 
other  compensation  for  his  services,  throughout  the  voyage, 
than  what  is  specified  in  the  instructions.  The  language  of 
the  instructions  is  very  precise,  and  the  two  and  a  half 
per  cent.,  there  allowed,  must  be  understood  as  including 
[  *  \S3  ]  all  the  commissions  of  the  supercargo.  Those  ^commissions 
were  to  arise  out  of  the  proceeds  of  the  outward  cargo;  and 
it,  is  not  to  be  supposed  that  a  further  commission  of  two  and 
a  half  per  cent,  on  the  sales  of  the  outward  cargo,  was  in 
contemplation.  The  silence  of  the  instructions  on  that  point, 
and  their  express  and  precise  declaration  of  what  was  to  be 
the  nature  and  amount  of  the  compensation,  preclude  any 
such  inference. 

I  am  of  opinion,  therefore,  on  this  point,  that  the  de- 
fendant is  entitled  to  the  credit  which  he  claims  by  his  an- 
swer, of  1 ,230  dollars,  as  being  part  of  the  profits  of  the 
voyage. 

2.  The  next  point  in  the  case  is,  whether  the  plaintiff 
is  entitled  to  recover  the  amount  insured  by  the  policy } 
cancelled  by  the  defendant  without  authority. 

There  is  some  difference  of  opinion   between  the  par 
144 


CASES  IN  CHANCERY.  I  J;J 

ties,  as  to  the  origin  and  motive  of  the  insurance  on  the        1817. 
testator's  life.  ^*~^~*  - 

The  defendant  says  he  was  desirous  of  being  indemnified  GUAY 
for  h's  advances  on  account  of  the  testator,  by  an  insurance 
on  his  life,  as  well  as  on  his  commissions ;  and  that  he,  ac- 
cordingly, suggested  it  to  the  testator,  who  acquiesced,  and 
told  the  defendant,  before  he  sailed,  that  he  had  applied,  for 
that  purpose,  to  the  agent  of  the  London  Insurance  Office. 
A  witness,  (James  B.  Murray,}  present  at  the  conversation 
between  the  defendant  and  the  testator,  s.iys,  the  sum  was 
»iot  exactly  fixed,  but  it  was  mentioned  to  be  between  2  and 
•3,000  dollars ;  and  that  it  was  understood  between  them, 
Miat  the  testator  was  to  fix  the  sum  at  the  agent's  office,  and 
\he  defendant  to  pay  the  premium. 

On  the  other  hand,  it  is  in  proof  by  another  witness,  G.^e'mg about 
I  '.wge  W.  Murray,)  that  as  a  friend  to  the  testator,  he  first  •j-.g^^J* 
suggested  to  him  a  policy  on  his  life,  for  the  benefit  of  his  ordered  insnr- 
*family ,  and  he  went  with  the  testator  to  the  agent's  office,  [  *  1  &4  ] 
.vhere  orders  for  the  insurance  were  given.  That  he  prom-  •*«<•«  to  be  made 

.,  °  v  *  on  his  life  to  the 

.sed  the  testator,  the  day  he  sailed,  to  see  that  the  policy  was  amount  of  spoo 
completed,  and  to  take  care  to  have  the  premium  paid.     That  pounds  sterling. 

1-1          i-i  -i  i    f        i  i  i        a'K'  -/"-   u»der- 

aiter  the  ship  had  sailed,  he  informed  the  defendant,  that  ti.e  took  to  pay  the 
testator  had  ordered  an  insurance  on  his  life,  to  which  the  premium     an.d 

.  .  .  have   the    busi- 

delendant  replied,  that  he  would  write  to  his  correspondents  ness  completed, 
in  London,  that  if  the  risk  was  taken,  to  complete  the  insu-  ™d  his  agent  m 

'.  7  7  /•     T  -i  j       London  obtain- 

rance  according  to  the  orders  oj  the  testator,  and  to  pay  the  ed  a  policy  for 

premium,   provided    the   witness  would    agree   to  leave  the  ^        akTTne 

policy  in  his  hands.  premium      for 

The  orders  given  by  the  testator  are  in  proof,  and  the  afterwards    af 

amount  of  the  insurance  was  three  thousand  pounds  ster-  teging there wds 

ling,  written  at  large,  and  repeatedly,  by  the  testator.     He  order^withwu 

declared,  therein,  his  object  to  be,  to  secure  to  his  wife  and  the  knowledge 

children,  in  the  event  of  his  death,  a  certain  sum,  and  that  ^[e^P™™1^! 

when   the  terms  were  known,  the  agent  of  the  office  was  camellia    and 

to  communicate  with  George   W.  Murray,  who  was   author-  1^,^™',"^^. 

ized  by  him.     All  this  appears  by  the  testimony  of  Charles  other  policy  u> 

Murray  be  exeriltea  for 

miin  ay.  450 pounds  ster- 

We  cannot  possibly  be  mistaken  as  to  the  great  and  lead-  ling.  G.  hav- 
ing motive  of  the  testator,  in  procuring  an  insurance  on  his  on^'year'''^/ 
life,  nor  can  we  be  mistaken  as  to  the  amount  of  the  sum  was  liei.i  'to  he 
which  he  intended  to  insure.  It  is  very  clear,  also,  that  hls^a^repre' 
when  the  defendant,  afterwards,  undertook  to  cancel  this  (tentative  forth* 
policy,  on  the  ground  of  mistake  in  the  sum  intended  by  the  o^m'a*]  policy* 
testator,  he  assumed  a  fact  which  did  not  exist.  which  had  beea 

The  defendant    professed  to  act,  throughout   the  whole 
transaction,  under  the  impression  that  the  testator  had  no  premium? 
other  object  in  ordering  the  insurance,  than  the  defendant's 
indemnity  for  the  advances  which  ne  might  make.     In  this 

VOL.  III.  19  14r> 


184  CASES  IN  CHANCERY 

1817.  he  was,  also,  mistaken.  That  indemnity  might  have  had 
,^^-v^-^^y  some  influence  with  the  testator,  but  his  governing  motive, 
GRAY  according  to  his  own  solemn  declarations,  and  according  to 
MUKR\Y  tne  testimony  of  G.  W.  M.,  was  of  a  higher,  more  pressing, 
F  *  185  I  ant^  more  interesting  nature,  since  it  was  to  secure  *some 
provision  for  the  future  support  of  his  wife  and  children. 
I  think  the  conduct  of  the  defendant  shows,  very  strongly, 
that  the  life  insurance  was  not  explicitly  and  precisely  under- 
stood, at  the  time,  to  be  solely  or  principally  for  his  in- 
demnity. On  the  first  of  July,  (the  day  of  the  departure 
of  the  ship,)  he  writes  to  his  Lonaon  correspondents,  to  have 
insurance  effected  on  the  supercargo's  commissions,  to  secure 
his  advances.  Why  omit  at  that  time  any  mention  of  the 
other  policy  ?  The  testimony  of  George  W.  Murray  shows 
that  it  was  after  the  testator  had  sailed ;  and  when  he  men- 
tioned to  the  defendant  the  orders  which  the  testator  had 
given,  that  the  defendant  proposed  to  take  the  business  into 
his  own  hands,  and  to  pay  the  premium,  provided  he  could 
have  the  policy  as  a  security.  He  accordingly  writes  to  Mullett 
and  Co.,  on  the  15th  of  July,  that  as  a  further  security,  the 
testator  had  forwarded  orders  to  insure  his  life  ;  and  he  directs 
them  to  complete  the  business,  and  take  the  policy  into  their 
hands,  and  adjust  the  premium,  and  charge  it  to  him. 

The  witness  George  W.  Murray  was  under  engagement 
to  the  testator  to  pay  the  premium ;  and  this  interference 
and  assumption  of  the  business,  by  the  defendant,  was  vol- 
untary, and  to  answer  his  own  purpose.  Having  undertaken 
to  do  the  business,  in  pursuance  of  the  orders  of  the  testator, 
in  the  stead  of  George  W.  Murray,  he  was  bound  to  do  it 
well  and  faithfully,  according  to  those  orders :  and  having 
performed  it,  he  was  concluded  and  bound  by  the  act  of 
performance. 

The  orders  of  the  testator  were  received  and  accepted 
at  the  London  Pelican  Office,  and  the  insurance  made,  the 
policy  delivered,  and  the  premium  duly  paid  by  the  agents 
of  the  defendant,  in  pursuance  of  his  letter  of  the  15th  of 
July.  All  this  is  proved  by  the  three  witnesses,  in  London. 
(Charles  Murray,  Jenkins  Jones,  and  Frederick  Mullett.}  It 
became,  then,  a  complete  and  executed  contract.  The 
[  *  186  J  *right  was  vested  and  fixed,  and  there  was  no  error  or 
mistake  in  the  case. 

The  next  part  of  the  history  of  this  case  relates  to  the  act 
of  cancelling  the  policy,  by  the  directions  of  the  defendant. 

The  answer  states,  that  on  the  7th  of  November,  and 
before  any  reply  was  received  from  his  London  correspond- 
ents, the  defendant  went,  with  George  W.  Murray,  to  the 
agent's  office  in  New- York,  and  there  discovered  that  the 
testator  had  insured  his  life,  to  the  amount  of  3,000  pounds 
146 


CASES  IN  CHANCERY.  '136 

sterling;  and  that  an  answer,  favorable  to  the  application,        1817. 
had  been  received.     He  states,  further,  that  not  knowing  v^^-^-x^ 
that  the  testator  had  any  other  object  beyond  the  defendant's         GRAY 
indemnity,  and  deeming  the  premium  high,  and  considering      MURRAY. 
it  would  be  for  the  interest  of  the  testator,  he  ordered  the 
insurance  for  2,000  dollars  only.     It  appears,  also,  by  his 
letter  to  his  correspondents,  of  the  7th  of  November,  that  he 
ordered  450  pounds  sterling  to  be  insured,  and  drew  for  the 
premium,  and  directed  them  to  nold  that  policy,  and  the  one 
on  the  commissions,  for  him. 

It  is  a  little  singular  that  in  tnis  letter,  as  well  as  in  the 
one  to  the  plaintiff,  of  the  13th  of  November,  the  defendant 
was  silent  as  to  the  amount  of  the  insurance  in  the  orders 
of  the  testator,  and  which  orders  he  knew  had  been  accepted. 
His  answer  does  not  pretend  that  the  sum  named  by  the 
testator  was  contrary  to  any  contract  or  understanding  be- 
tween them,  but  only  that,  as  the  premium  was  high,  and  as 
he  did  not  know  that  the  testator  had  any  object  beyond  the 
defendant's  interest,  he  thought  it  for  the  interest  of  the 
testator,  to  reduce  the  policy  from  3,000  pounds  sterling  to 
450  pounds  sterling. 

He  says  that  he  did  this  with  the  advice  of  George  W. 
Murray.  Whether  he  did,  or  did  not,  is  immaterial,  for  the 
contract  of  insurance  had  passed,  at  that  time,  beyond  the 
power  of  recall,  by  either  of  them.  But  George  W.  Murray 
declares,  that  he  gave  him  different  advice.  When  *the  [*  187  j 
defendant  told  him  the  sum  was  so  large,  that  he  was 
sure  it  was  a  mistake,  and  talked  of  cancelling  the  policy, 
the  witness  advised  him  to  have  reference  to  the  original 
order  of  the  testator,  before  he  took  any  step.  But  the 
defendant  waited  for  no  such  reference,  and  he,  afterwards, 
told  the  witness,  that  he  had  taken  upon  himself  to  cancel 
the  policy. 

It  appears,  that  on  the  17th  of  November,  he  received  the 
answer  of  his  correspondents  to  his  letter  of  the  15th  of 
July,  in  which  they  state,  that  the  testator  had  directed  an 
insurance  to  3,000  pounds,  and  that  the  office  had  accepted 
Uie  risk,  and  that  they  had  paid  the  premium,  and  charged 
it  to  him.  Then  follows  his  reply  of  the  19th  of  November, 
declaring  that  the  policy  for  3,000  pounds  was  a  mistake, 
and  must  be  returned  in  toto,  and  no  further  sum  to  continue 
than  450  pounds ;  and  his  letter,  also,  to  the  plaintiff,  of  the 
10th  of  December,  announces  to  her  the  mistake,  and  his 
conviction  of  it.  This  last  letter  to  the  plaintiff  shows  that 
the  defendant  assumed  a  very  bold  and  arbitrary  control  over 
the  policy  of  her  husband,  and  without  regard  to  any  interest 
but  his  own.  He  tells  her,  he  understood  that  her  husband 
only  contemplated  insuring  2,500  dollars,  and  that  2.000 

147 


187  CASES  IN  CHANCERY. 

1817.       dollars  would  cover  his  advances ;  and  that  he  took  the  liberty 

v^^-xx— ^^/  of  acting  as  he  thought  best  for  the  interest  of  her  husband , 

GRAY        and  had  limited  the  sum  to  2,000  dollars,  and  had  directed 

MURRAY       ^e  ^rst  P°hcv  to  ^e  cancelled. 

The  policy  was,  accordingly,  cancelled  under  his  orders, 
and  by  his  agents,  Thomas  Mullett  and  Co. ;  and  it  was  con- 
sented to  be  cancelled,  and  the  premium  returned  by  the 
Pelican  Insurance  Office,  under  the  impression  and  belief 
communicated  to  them  by  the  defendant,  that  the  3,000 
pounds  had  really  been  mistaken  for  3,000  dollars.  But  if 
the  mistake  had  existed,  why  did  the  defendant  depart  from 
the  testator's  intention,  and  reduce  the  policy  from  3,000  to 
[  *  1 83  ]  2,000  dollars  ?  His  interference  with  the  contract  *of  the 
testator,  was  not  only  without  authority,  but  it  appears  to  me 
to  have  been  rash  and  unjust. 

In  the  close  of  the  correspondence  on  this  point,  by  the 
letter  of  Thomas  Mullett  and  Co.,  of  the  22d  of  December, 
they  state  that  they  had  corrected  the  alleged  mistake,  and 
obtained  the  consent  of  the  insurance  office  to  cancel  the 
3,000  pounds  policy.  But  they  observe,  by  way  of  rebuke, 
that  it  was  "  rather  singular "  the  defendant  had  never  before 
mentioned  "  the  sum." 

By  this  interference,  on  the  part  of  the  plaintiff,  to  pro- 
cure the  destruction  of  a  valid  and  executed  contract,  I  think 
he  has  substituted  himself  for  the  insurers,  and  is  answerable 
to  the  plaintiff  for  the  value  of  the  original  policy,  after 
deducting  the  premium.  The  pretence  of  fraud  in  the 
testator,  by  representing  himself  as  sound,  when  he  was  not 
sound,  is  an  inadmissible  defence.  The  answer  of  the  de- 
fendant states,  that  the  health  of  the  testator  was  indifferent 
when  he  sailed,  and  the  defendant  doubted  of  his  life  ;  yet 
we  hear  of  no  scruple,  or  objection,  on  this  ground,  when 
the  defendant  was  urging  the  testator  to  have  his  life  insured, 
and  when  he  was  himself  an  assumed  agent  to  effect  it.  If 
the  health  of  the  testator  was  sufficient  for  a  policy  to  in- 
demnify the  defendant,  it  was  sufficient  for  a  policy  to  provide 
for  his  own  family.  The  defendant  was,  at  least,  duly 
apprized  of  the  state  of  the  testator's  health,  and  he,  in  the 
character  of  a  substituted  insurer,  is  bound  by  his  own 
knowledge.  But  there  is  no  sufficient  evidence  of  the  fact, 
that  the  testator  was  of  an  unsound  constitution.  The 
momentary  indisposition  and  despondency,  mentioned  by 
James  B.  Murray,  is  of  no  material  consequence. 

As  to  any  supposed  acquiescence  on  the  part  of  the  plain- 
tiff, and  binding  on  her,  it  is  evident  that  she  assumed  the 
statements  of  the  defendant  to  be  correct.  It  is  a  well- 
established,  as  well  as  a  most  reasonable  principle,  that  to 
constitute  a  confirmation,  the  party  confirming  must  be 
148 


CASES  IN  CHANCERY. 

"fully  apprized  of  his  rights.     (Ca?m  v.    Cann,  I  P.  fVms.        1817 
732.     Roche  v.  O'Brien,  1  Ball  and  B.  339.)  ^^^ 

I  shall,  accordingly,  decree,  that  a  reference  be  made  to  a  GRAY 
master,  to  take  and  state  an  account  between  the  parties,  Mui'lRAT 
and  that  in  taking  such  account,  the  defendant  be  charged 
with  the  commission  of  two  and  a  half  per  cent.,  and  with 
the  reasonable  expenses  and  disbursements  of  the  testator 
on  the  voyage,  and  with  the  five  per  cent.,  or  one  twentieth 
of  the  net  profits,  according  to  the  tenor  of  the  allowance 
mentioned  in  the  letter  of  instructions  from  the  defendant  to 
the  testator.  That  the  defendant  be  credited  with  the  com- 
missions of  two  and  a  half  per  cent,  on  the  sales  of  the  wine, 
to  1,230  dollars,  and  that  these  commissions  be  considered 
us  constituting,  part  of  the  net  profits  of  the  voyage,  at  its 
termination.  That  the  defendant  be  charged  with  the  amount 
of  the  policy  in  the  pleadings  mentioned,  for  3,000  pounds 
sterling,  with  interest  thereon,  from  the  time  that  the  knowl- 
edge of  the  testator's  death  was  received  by  the  defendant, 
and  be  credited  with  the  premium  thereon,  to  254/.  5s. 
That  in  stating  the  said  account,  no  notice  be  taken  of  the 
subsequent  policy  which  the  defendant  procured  without 
authority.  That  the  proofs  already  taken  in  the  cause,  be 
received  as  evidence  before  the  master,  a.id  that  the  question 
if  costs,  and  all  further  questions,  be  reserved,  until  the 
coming  in  of  the  report. 

Decree  accordingly. 

149 


190*  CASES  IN  CHANCERY 

1817. 

DECOUCHE 

SAVETIER.     *DECOucHE  and  others  against  SAVETIER  and  ^thers. 

[Distinguished,  2  Sandf.  Oh.  45.    Explained.  7  Johns.  Ch.  123.    Followed.  3  Edw  547. 
Overruled,  19  Huu  513,  510;  7  Johns.  Ch.  90.] 

Rights  dependent  on  the  nuptial  contract,  are  governed  by  the  lex  lay 
contractus. 

A  contract  of  marriage,  executed  in  Paris,  between  French  citizens, 
contained  a  clause  (donation  mutuellc]  by  which  the  parties  mutually 
gave  to  each,  and  the  survivor,  all  the  estate  and  property,  acquired, 
or  purchased,  or  belonging  to  either,  at  the  time  of  his  or  her  death, 
to  be  enjoyed  by  the  survivor  exclusively:  the  husband,  afterwards, 
abandoned  his  wife,  and  came  to  reside  in  New-  York,  where  he  lived 
many  years,  having  acquired  a  large  personal  estate,  and  died  intes 
tate,  without  lawful  issue,  leaving  his  wife  living  in  France :  Held, 
that  the  wife,  as  survivor,  took  all  the  estate,  under  the  donation,  ac- 
cording to  the  law  of  France,  to  the  exclusion  of  the  relations  of 
the  husband ;  and  that  her  legal  representatives,  after  her  decease, 
were  entitled  to  the  whole,  including  not  only  what  originally  entered 
into  communaute  under  the  contract,  but  the  separate  property  intended, 
in  case  of  issue  living  at  the  death  of  either,  to  go  to  the  children,  as 
well  as  the  joint  increase  of  the  common  stock,  during  the  life  of  the 
intestate,  and  the  increase  thereof,  since  his  death,  in  the  hands  of  the 
administrator. 

No  lapse  of  time  is  a  bar  to  a  direct  trust,  as  between  trustee  and  cestui 
que  trust.  Therefore,  an  administrator,  being  a  trustee,  cannot  set  uo 
the  statute  of  limitations  in  bar  to  the  next  of  kin,  or  persons  entitled 
to  the  distribution  of  the  assets. 

But  where  a  person  takes  possession  of  property  in  his  own  right,  and 
is  afterwards,  by  matter  of  evidence,  or  construction,  changed  into  a 
trustee,  lapse  of  time  may  be  pleaded  in  bar. 

An  executor  cannot  plead  the  statute  of  limitations  in  bar  to  a  legacy, 
though  he  may  against  a  creditor. 

The  time  of  limitation  of  actions  depends  on  the  lexfoti,  and  not  on  the 
lex  loci  contractus. 

December  20  THIS  was  an  amicable  suit,  brought  for  the  purpose  of 
obtaining  the  sanction  of  this  Court  to  a  compromise  of  the 
controversy  between  the  parties,  some  of  whom  were  iniants, 
and,  therefore,  not  legally  bound  by  their  voluntary  assent 
to  the  settlement  proposed.  The  bill,  which  was  filed 
September  3,  1817,  stated,  that  on  the  24th  of  January, 

1787,  Claude  J.  F ,  then  of  the  city  of  Paris,  contracted 

marriage  with  Madelaine  *S' ,  of  the  same  place,  and  were 

then  and  there  married.  Previous  to  the  marriage,  and  in 
contemplation  thereof,  marriage  articles  (im  contrat  de  ma- 
1  *  191 1  riage)  were  executed  by  *them,  the  22d  of  January,  1787, 
before  public  notaries,  in  due  form,  and  by  the  consent  of 
parents,  &c.,  and  by  which  they  stipulated  as  follows  :  "  That 
there  shall  be  a  community  of  property  between  them,  ac- 
cording to  the  custom  of  Paris,  which  is  to  govern  the 
disposition  of  the  property,  though  the  parties  should  here 
after  settle  in  countries  where  the  laws  and  usages  are 
150 


CASES  IN  CHANCERY.  191 

different  or  contrary:  (a)  That  neither  of  the  parties  shall  1817. 
be  bound  by  the  debts  or  hypothecations  of  the  other  before 
the  marriage,  but  such  debts  are  to  be  paid  out  of  the  property 
of  the  contracting  party  only.  That  C.  J.  f\  (the  husband) 
declares  that  his  property  consists  of  two  thousand  livres,  in 
merchandise,  goods,  and  cash,  arising  from  his  thrift  and 
economy.  The  uncle  of  M.  S.  (the  wife)  settles  on  her  in 
dowry,  or  marriage  portion,  in  advance  or  anticipation  of  the 
future  inheritance  of  her  father  and  mother,  six  hundred 
livres ;  her  parents  to  contribute  each  one  half  thereof,  and 
which  sum  the  uncle  declares  he  has  received  from  her 
parents,  and  has  paid  it  to  C.  J.  F.  (the  husband.)  The 
wife,  as  a  further  marriage  portion,  advances  fourteen  hun- 
dred livres,  consisting  of  chattels  and  ready  money,  the 
proceeds  of  her  own  thrift  and  economy,  and  which  last 
sum  C.  J.  F.  (the  husband)  agrees  to  be  chargeable  ivith, 
in  consequence  of  the  marriage.  That  of  the  goods  of  the 
parties,  there  shall  be  placed  in  common  Jilt  hundred  livres, 
and  the  residue,  with  what  shall  be  acquired  thereafter,  by 
succession,  gift,  legacy,  or  otherwise,  shall  be  in  severally,  to 
the  person  to  whom  the  same  shall  come,  and  the  represent 
atives  of  that  person  exclusively,  in  the  line  of  representation. 
(A)  That  C.  J.  F.  (the  *husband)  endows  and  settles  on 
M.  S.  (his  wife)  one  thousand  livres,  to  be  enjoyed  by  her, 
as  soon  as  she  shall  be  entitled  to  dower,  and  to  remain  and 
be  the  property  of  the  children  of  the  marriage.  That  the 
survivor  shall  take,  per  preciput,  (c)  out  of  the  common 
property,  before  any  distribution,  such  articles  of  furniture 
as  the  survivor  shall  choose,  according  to  appraisement, 
without  regard  to  the  sale  price,  or  the  amount  in  ready 
money,  at  the  election  of  the  survivor.  That  if  any  of  the 
chattels  held  in  sever alty  shall  be  disposed  of  during  the 
marriage,  they  shall  be  replaced,  pursuant  to  custom,  and  the 
remedy  for  the  same  shall  follow  the  nature  of,  and  rules 
which  regulate,  real  property,  and  shall  belong  exclusively  to 
the  one  entitled.  That  the  wife  and  her  children,  on  re- 
nouncing all  the  said  common  property,  may  resume  all  that 
she  brought  into  the  common  fund,  together  with  whatever 
shall  devolve  upon  her  during  her  marriage.  That  if  the 

(«)  "  Les  futurs  epoux  seront  communs  en  biens,  suivant  la  Coutume  de 
Paris,  qui  regit  la  dit  communaule  et  en  reglera  le  partage,  encore  que,  par 
la  suit,  ils  fassent  leur  demeures  ou  des  acquisitions  en  pays  ou  les  lois  et 
usages  seroient  contraries,  aux  quelles  ils  derogent  expressment  par  ces  pre- 
sentes." 

(6)  "  Des  biens  des  futurs  epoux,  il  en  entrera  de  part  et  d'autre,  en  com- 
munaute  une  somme  de  cinq,  cents  livres,  et  le  surplus,  ense  aible  ce  qui 
lieur  viendra  par  la  suita,  par  succession,  donation,  legs,  ou  outrement,  leur 
•eraet  derneurera  propre  en  aux  leur  de  cote  et  ligne." 

Cc)  Vide  Pothier,  Trait  de  la  Comm.  p.  1.  ch.  3.  s.  2.  art.  7.  s.  1.  Ferriere 
•ur  1' article  229  de  coutume  de  Paris,  s.  2.  Code  Napoleon,  art.  1515. 

151 


192  CASES  IN  CHANCERY. 


1817.  w^e  renounces,  she  may  take  back,  besides  her  stipulated 
dowry,  the  preciput,  or  the  stipulated  sum,  aforesaid,  and  the 
whole  to  be  clear  of  debts,  or  hypothecations,  by  virtue  oi 
tne  sa*d  community  of  goods,  and  from  which  she  shall  be 
discharged  and  indemnified  by  her  husband,  &c.  That  the 
said  parties  mutually  give  to  each,  and  to  the  survivor,  all  the 
estate  and  property  acquired  or  purchased  and  belonging  to 
either  party,  at  his  or  her  death,  to  be  enjoyed  by  the  survivor 
exclusively.  This  donation,  not  to  take  place,  if  at  the  death 
of  the  party  first  dying,  there  should  then  be  children  living 
of  the  marriage  ;  but  if  any  such  children  should  afterwards 
die,  the  donation  to  resume  its  force,  (a) 

[*193]  *That  the  parties  continued  to  live  together  until   1792, 

and  during  that  time  had  two  children,  both  of  whom  died 
during  the  lifetime  of  their  mother,  and  in  infancy,  and 
without  making  any  disposition  of  their  property. 

That,  in  1792,  C.  J.  F.,the  husband,  left  M.,  his  wife,  and 
refused  to  cohabit  with  her  ;  and  abandoning  her  and  the 
family,  he  left  France,  with  a  woman  who  took  her  name  and 
personated  her,  and  went  to  Martinique  ;  from  thence  the) 
came  to  the  United  States,  and  settled  in  Neiv-York,  where 
he  established  himself,  as  a  jeweller.  The  woman  who  so 
accompanied  him  from  France,  passed  as  his  wife,  and  the) 
cohabited  together  until  his  death.  During  their  cohabitation, 
they  had  several  children,  (defendants,)  all  of  whom  are  liv- 
ing, the  eldest  being  of  age,  the  second  nineteen  years,  and 
the  third  fifteen  years  of  age.  The  husband  died  on  the  10th 
of  June,  1810,  intestate,  possessed  of  a  personal  estate  in 
money,  goods,  and  securities  for  money.  On  the  21st  of 
June,  1810,  letters  of  administration  were  granted  to  M.  «  ., 
(the  woman  who  so  personated  the  wife,)  who  possessed  her- 
self of  the  personal  estate,  appropriated  the  one  third  there- 
of to  her  own  use,  procured  herself  to  be  appointed  guardian 
of  her  children,  and  retained  the  other  two  thirds,  as  their 
distributive  share.  On  the  19th  of  March,  1812,  the  said 
administratrix  made  her  will,  and  gave  all  her  estate  equally 
to  her  three  children,  and  made  the  defendants  (S  —  r  and 

(a)  "  Us  se  font  donation  mutuelle  et  reciproque,  en  la  meilleure  forme  et 
maniere  que  donation  puisse  valoir  et  avoir  lieu,  1'un  a  1'autre,  et  au  survi- 
vant  d'eux  ce  accepte  par  les  S.  et  Demoissella,  futurs  epoux  pour  le  dit  sur- 
vivant  de  tous  les  biens,  meubles  et  immeubles.  acquetes,  conquetes  proprts 
et  autres  qui  pourront  appartenir  au  premier  mourant,  au  jour  de  son  deres, 
a  quelque  somme  que  letous  puisse  monter,  et  en  quelque  endroit  qu'  ils  soir  lit 
situes  ;  pour  enjouir  par  le  dit  survivant  entoute  propriete  et  comme  de  chose 
lui  appartenante,  a  compter  du  jour  du  deces  du  dit  prem;  T  mourant. 

"  Cette  donation  n'aura  neanrnoins  point  lieu,  si  au  jour  du  deces  du  di'  pre 
mier  mourant,  il  y  avoit  des  enfans  existantes  nes  ou  a  naitre  du  <;.'t  innr'  igo 
inais  s'il  y  eii  avoir  et  qu'  ils  vinssent,  par  la  suiti  .  a  deceder,  ou  faire  profes 
sion  en  religion,  en  minorite  ou  majorite,  avant  d'avoir  valablement  dispose, 
alors  la  dit  donation,  dont  1'effet  n'auroit  ete  que  suspendue.  reprendva  la 
force  et  vertu,  comme  s'il  n'eut  janiais  existe  d'enfants  du  dit  manage." 

152 


CASES  IN  CHANCERY.  *!{.)-! 

-u)  her  executors,  with  directions  to  convert  her  estate        1817. 
into  money,  to  educate  the  three  children,  and  pay  them  their  \^^~^~^. 
Respective  portions,  when  they  came  of  age  or  married.    On     DECOUCHE 
the  28th  of  March,  1812,  the  said  administratrix  died,  and     gAVKvTIER 
her  executors   possessed   themselves  of  the  goods,  &c.  in 
her  possession,  and  have  been  appointed  guardians  to  her 
children. 

That  on  the  30th  of  March,  1816,  M.  F.,  the  real  wife 
died  at  Lyons,  where  she  had  continued  to  live  with  her 
mother,  after  her  husband  had  abandoned  her.  She  died 
intestate,  leaving  M.  A.  S.,  her  mother,  the  plaintiff,  living, 
who,  by  the  laws  of  France,  and  the  legal  effect  of  the  said 
marriage  contract,  is  entitled  to  four  sixteenths  of  all  the 
estate  of  the  said  M.  F.,  her  daughter,  at  her  death.  The 
plaintiff  C.  S.  is  brother  of  the  wife,  and  is  entitled  to  three 
v'.ittenths  of  her  property.  J.  S.,  (plaintiff,)  her  brother,  M. 
B.,  (plaintiff,)  her  sister,  A.  I.  B.,  the  sister's  husband,  (plain- 
tiff,) and  P.  B.  and  F.  B.,  children  of  a  deceased  sister, 
(plaintiffs,)  in  right  of  their  mother,  are  respectively  entitled 
to  three  sixteenths  each,  of  the  estate  of  the  said  deceased 
M.  F.,  &c. 

That  the  defendants,  who  are  executors  and  guardians  as 
aforesaid,  have  possession  of  goods  and  money,  and  securi- 
ties, which  were  in  possession  of  the  administratrix,  and  which 
belonged  to  her  said  husband,  to  the  amount  of  thirty-five 
thousand  dollars.  That  the  eldest  child  of  the  administra- 
trix, who  was  of  age,  had  received  no  more  than  what  was 
necessarily  expended  on  his  education. 

The  bill  prayed  that  the  defendants,  as  executors  and 
guardians,  may  be  compelled  to  account  with  the  plaintiffs, 
for  the  property  so  in  their  possession. 

The  answer  of  the  defendants,  filed  the  4th  of  August, 
1817,  admitted  the  facts  charged  in  the  bill.  They  stated 
that  the  husband  made  all  his  property,  as  a  jeweller,  while 
he  lived  with  his  assumed  wife,  in  New-York.  That  she 
transacted  all  the  mercantile  business,  as  he  -could  not  read 
nor  write,  and  was  totally  ignorant  of  the  English  language 
That  she  was  chiefly  instrumental  in  the  acquisition  of  the 
^property  of  which  he  died  possessed,  and  considerably  in-  [  *  195  J 
creased  it  after  his  death  ;  the  inventory,  in  1810,  being  only 
26,000  dollars,  while  that  of  1812  was  35,000  dollars.  That 
the  children  by  the  assumed  wife  were  treated  by  their  father 
as  his  legitimate  offspring.  And  the  defendants  submitted 
to  tne  Court,  whether  the  plaintiffs  were  not  barred,  by  the 
lapse  of  more  than  six  years  since  the  death  of  the  husband 
in  1810,  without  making  any  claim,  as  well  as  by  the  lapse 
of  time  since  the  husband  separated  from  his  wife  ;  and  if 

VOL.  III.  20  153 


195  CASES  IN  CHANCERY. 

1817.       no*->  whether  the  meritorious  services  of  the  assumed  wife  to 
v^-s^^x  her  husband,  during  his  life,  and  to  the  estate,  since  his  death, 
DECOUCHE     do  not  entitle  her  and  her  children  to  a  share  of  the  estate, 
SAVETIER.     as  Partner>  agent,  or  servant. 

The  plaintiffs  had  offered  to  accept  of  a  moiety  of  the 
property,  in  satisfaction  of  their  claim,  which  went  to  the 
whole  of  the  assets  in  the  hands  of  the  defendants  ;  and  all 
the  parties  who  were  of  legal  age  assented  to  the  compro- 
mise ;  but  two  of  the  defendants  being  infants,  application 
was  made  to  the  Court  for  its  sanction.  The  chancellor,  on 
the  6th  of  September,  1817,  ordered  it  to  be  referred  to  a 
master,  to  examine  and  report  whether  the  proposed  compro- 
mise was  for  the  interest  of  the  infant  children  or  not. 

On  the  14th  of  October,  1817,  the  master  (J.  /.  Drake) 
made  a  special  report,  in  which  he  stated  that  the  amount  of 
property  left  by  C.  J.  .P.,  at  his  decease,  was  26,307  dollars 
and  3  1  cents  ;  and  that  the  real  wife  died  in  a  public  hospital, 
at  Lyons,  intestate  ;  and  that  the  plaintiffs,  by  the  laws  of 
France,  are  entitled  to  her  property,  in  the  proportions  stated 
by  the  plaintiffs.  But  after  examining  the  marriage  contract, 
and  discussing  the  several  questions  which  arose  on  its  con- 
struction and  effect,  he  concluded  that  the  plaintiffs,  as  rep- 
resentatives of  the  wife,  are  entitled  only  to  about  1,200  dol- 
lars, or  6,650  livres,  under  the  contract,  and  that,  therefore 
it  would  not  be  for  the  interest  of  the  infants  to  accept  of  the 
proposed  compromise.  That  even  admitting  that  the  wife, 
[  *  196  ]  as  widow,  *would  have  been  entitled  to  the  moiety  of  her  hus- 
band's property,  had  she  claimed  it,  yet  she  was  not  entitled 
to  the  property  acquired,  afterwards,  by  the  mother  of  his 
children,  nor,  under  these  circumstances,  to  interest;  and  he 
seemed  to  think  that  the  statute  of  limitations  was  a  bar  to 
the  claim  of  the  plaintiffs  ;  and,  on  the  whole,  he  concluded 
that  it  was  not  for  the  interest  of  the  infants  to  accept  the 
proposed  compromise. 


for  the  plaintiffs,  contended,  that  they  were 
entitled  to  all  the  personal  property  of  which  C.  J.  F.  died 
possessed,  and  to  all  that  had  been  added  to  it  by  the  adminis- 
tratrix, since  his  death  ;  and  consequently,  that  the  proposed 
compromise,  by  which  the  one  half  was  relinquished  in  the 
defendants,  was  for  the  interest  of  the  infant  children. 

The  rights  of  the  claimants,  as  heirs  of  M.  F.,  so  far  as 
they  arise  out  of  the  marriage  contract,  must  depend  on  the 
law  of  France.  That  contract  was  not  only  made  in  France, 
and  with  a  general  view  to  the  law  of  that  country,  but  the 
first  article  expressly  stipulates  that  it  shall  be  governed  by 
the  custom  of  Paris,  although  the  parties  should,  afterwards 
154 


CASES  IN  CHANCERY.  196 

fix  their  domicil,  or  acquire  property,  in  countries  where  the         1817. 
laws  and  usages  may  be  different,  and  which  laws  or  usages   s^*-^^-^^ 
the  parties  expressly  renounce.  DECOUCHE 

The  hx  loci  contractus  is,  therefore,  to  oe  investigated.  It 
is  not  a  question  of  natural  equity,  but  of  positive  institu- 
tion. The  rules  of  the  common  law  of  England,  or  those 
which  have  been  adopted  or  established  by  our  legislature, 
and  the  decisions  of  our  Courts,  can  afford  no  light  on  the 
subject.  The  Court  must  determine  the  question  as  if  it 
were  sitting  in  Paris. 

Though  the  master,  in  his  report,  seems  to  admit  that  the 
lex  loci  contractus  is  to  govern,  he  has  not  deemed  it  neces- 
sary to  ascertain  what  that  law  is. 

It  is  not  probable  that  the  royal  notaries  of  Paris,  who 
*are  a  body  of  men  distinguished  for  their  learning,  intelli-  r  *  \  97 
gence,  and  probity,  would  have  drawn  up  a  contract  contain- 
ing stipulations  so  superfluous  and  contradictory  as  the  report 
suggests.  The  apparent  discrepancy  in  the  different  articles, 
ought  rather  to  be  imputed  to  the  difficulty  of  translating 
from  one  language  to  another,  technical  terms,  which  have 
no  prototypes  in  our  laws,  institutions  and  manners.  It  is  a 
principle  of  universal  law,  according  to  Pothier,  (Trait,  des 
Oblig.  n.  92.)  that  in  the  interpretation  of  contracts,  their 
terms  ought  to  be  construed  in  a  sense  which  will  give  them 
effect,  rather  than  in  a  sense  in  which  they  would  have  no 
effect. 

The  master  is  mistaken  in  supposing  that  the  donation 
mutuelle,  in  the  last  article  of  the  contract,  embraces  only 
the  property  held  en  communaute,  and  amounting,  in  1787, 
to  about  one  thousand  livres,  and  does  not  extend  to  the  prop- 
erty held  as  propre  to  each  of  the  contracting  parties. 

The  stipulation  of  propres  (or  severally,  as  it  is  translated) 
is  not  to  be  confounded  with  substitution,  or  perpetual  entail- 
ment,  to  which  it  bears  no  analogy.  Chancellor  D'Aguesseau, 
in  1741,  by  an  ordinance,  which  was  submitted  to  all  the  par- 
liaments of  the  kingdom,  prescribed  the  mode  of  entailing 
property  which  was  not  to  make  part  of  the  communaute, 
upon  the  heirs.  This  regulation  would  have  been  followed 
by  the  notaries  who  drew  the  contract,  if  that  had  been  their 
intention.  Pothier  (Traite  de  la  Communaute,  n.  105.)  de- 
fines the  term  propre,  when  used  in  matters  of  communaute, 
as  meaning  that  which  is  not  common,  or  which  does  not  enter 
en  communaute. 

But  though  the  1 ,500  livres  advanced  by  the  husband  and 
wife,  respectively,  did  not  irrevocably  enter  into  la  commu- 
naute, as  was  the  case  with  the  500  livres,  advanced  by  each, 
yet.  by  a  fiction  of  law,  the  3,000  livres  were  confounded  with 
the  communaute,  so  long  as  it  subsisted,  and  the  husband  had 

155 


(98*  CASES  IN  CHANCERY. 

1817.  tne  "ght  of  disposing  of  this  sum,  in  his  lifetime,  ad 
s^.*^^-*^  nenda  onera  matrimonii.  Those  propres  *are  termed  in  the 
DECOUCHE  French  law,  propres  fictifs  de  communaute,  or  propres  conven- 
SAVETIER  tionelles ;  and  Pothier,  in  his  treatise,  (n.  325,  326.)  show? 
the  power  of  the  husband  over  them.  The  only  effect,  there- 
fore, of  this  stipulation  in  the  contract  would  have  been,  that 
on  the  decease  of  C.  J.  F.,  leaving  lawful  children,  as  heirs 
(de  ligne)  they  would  have  taken  1,500  livres  from  the  amount, 
of  the  entire  communaute,  before  the  distribution  of  the  gene- 
ral mass;  and  his  widow  would  also  have  taken  an  equal 
sum.  As  he  left  no  lawful  children  living  at  the  time  of  his 
death,  the  clause  of  donation  mutuelle  was  brought  into  ope- 
ration, the  effect  of  which  is  to  give  to  the  survivor  all  the 
property  possessed  by  the  party  dying,  at  the  time  of  his  de- 
cease. Had  there  been  no  such  clause,  the  propres  would 
have  been  extracted  from  the  communaute,  before  any  parti- 
tion, and  would  have  descended  to  the  heirs  lineal  and  col 
lateral  (aux  lews  de  cote  et  ligne)  of  the  respective  parties. 
(Pothier,  Trait,  de  la  Comm.  n.  329.) 

The  contract  provides  that  the  restitution  of  the  propres, 
(le  remploi  des  propres,)  if  any  shall  be  aliened  during  the 
marriage,  shall  be  made  according  to  the  custom,  and  the 
party  who  is  entitled  thereto,  or  his  or  her  heirs,  shall  have 
a  remedy  in  the  nature  of  a  real  action.  (Vide  Pothier, 
Trait,  de  la  Comm.  n.  585.) 

The  donation  mutuelle,  then,  clearly  includes  the  3,000 
livres  of  propres  fictifs  de  la  communaute ;  and  expressly  all 
the  property,  (meubles,  et  immeubles,  acquetes,  conquetes,  pro- 
pres et  autres,)  which  either  party  might  possess,  at  his  or  her 
decease,  whatever  might  be  the  value,  or  wherever  situated. 

The  propres  are   included    in  the   donation   nominatim; 
and  the  import  of  this  term,  as  well  as  the  words  of  this 
stipulation,  are  explained  by  Pothier,  with  his  usual  precision 
and  perspicuity.     (Trait,  de  la  Comm.  n.  226.  n.  340.) 
[*199]  *There  is,  then,  no  discrepancy  between  this  stipulation 

and  the  subsequent  donation  mutuelle;  and,  as  the  children 
of  the  marriage  are  dead,  both  clauses  may  have  their  full 
operation  and  effect. 

To  see  what  part  of  the  property,  belonging  to  the  hus- 
band at  the  time  of  his  death,  the  wife  is  entitled  to,  under 
the  communaute,  connected  with  the  donation,  we  must 
inquire  what,  by  the  custom  of  Paris,  was  the.  nature  and 
extent  of  the  communaute. 

According  to  Pothier,  this  communaute  includes  all  the 
property  of  the  parties  existing  at  the  death  of  the  party 
first  dying,  except  as  excepted,  by  the  custom  or  the  contract. 
(Ibid.  n.  168.)  The  property  of  which  the  husband,  in  this 
case,  died  possessed,  in  1810,  is  included  in  the  communaute. 
156 


CASES  IN  CHANCERY.  191) 

oy  the  custom,  and  is  not  excluded  by  the  contract.     That        1317. 
property  did  not  come  to  him  by  succession,  donation  or  leg-  v^^-x^-^x 
acy  ;  but  was  the  fruit  of  his  commercial  industry,  exercised     DECOUCHK 
upon  the  personal  property  which  formed  the  capital  of  the 
communaute,  (properly  so  called,)  and  the  propres  fatifs  de 
communaute.     It  is  settled,  that  the  interest  and  profits  of 
the  propres,  (les  fruits   des  propres,}  acquired    during  the 
marriage,  enter  into,  and  make  part  of  the  communaute,  even 
though  the  parties,  after  putting  a  specific  sum  into  commu- 
naute, reserve  the  residue  as  propre,  and  also  what  may  be 
acquired  by  succession  or  otherwise.     (Pothier,  ibid.  n.  204.) 

In  the  present  case,  there  being  no  children  of  the  mar- 
riage surviving,  both  the  propres  and  the  communaute,  (strictly 
so  called,)  and  all  the  fruits  and.  profits  thereof,  are  absorbed 
in  the  universal  and  irrevocable  donation  between  the  parties, 
with  which  the  contract  concludes. 

The  word  "  autrement"  is  not  to  be  extended,  so  as  to 
destroy  the  effect  of  the  stipulation  as  to  the  propres.  It 
meant  only  to  refer  to  such  property  as  should  be  acquired 
by  a  title  of  the  same  class  with  those  specified,  such 
*as  succession,  legacy,  donation,  or  some  other  lucrative  title.  [  *  200  J 
(Pothier,  ibid.  n.  323.  n.  324.) 

The  condition,  then,  on  which  the  term  propres  had  an 
ephemeral  existence,  having  been  satisfied,  and  as  the  prop- 
erty left  by  the  husband  did  not  come  to  him  by  succession, 
legacy,  donation,  or  any  other  similar  title,  but  consisted  of 
the  original  capital  of  the  communaute,  (literally  so  called,) 
and  the  propres  Jiciifs  de  communaute,  and  the  fruits  of  his 
industry  exercised  on  that  capital,  the  whole  must  be  inclu- 
ded in  the  general  donation  mutuelle. 

Donations  par  contrat  de  manage  are  regarded  with 
great  favor  and  benignity  in  the  French  law.  They  are 
valid  without  any  actual  delivery  of  the  things,  and  extend 
to  future  acquisitions,  as  well  as  to  property  then  in  posses- 
sion, and  are  irrevocable  during  the  coverture  ;  and  all  the 
property  possessed  by  either  party  at  his  or  her  decease, 
may  be  delivered  to  the  survivor,  without  ceremony.  (Lau- 
rierc,  sur  le  Coutume  de  Paris,  torn.  2.  p.  330.  Code  Civil, 
art,  1082,  1083.  1086,  1087.) 

Our  statute  of  distributions  has  nothing  to  do  with  this 
case.  The  law  of  the  country  where  the  wife  was  domiciled 
at  her  decease,  must  govern  the  inheritance  of  the  personal 
property  to  which  she  was  entitled,  on  the  death  of  her 
husband.  Huberus  Protect,  torn.  2.  Z.  1.  tit.  3.  De  conflicts 
legum,  §  9.  p.  540.)  (a) 

(a)  "  ./Yore  tantum  ipsi  contractus  ipstn  que  nuptite  certis  locis  rite  celebrate 
ulique  pro  justis  et  validis  habentur,  sed  etiamjura  el  ejfecta  contractuum  ntp- 
tiarumque  in  us  locis  recepta,  ulique  vim  suarn  oltinebunt." 

157 


ii()0  CASES  IN  CHANCERY. 


1817.  The  plaintiff*8  claim  as  heirs  of  M.  F.,  ab  intestate,  ac 

.^^-^^-^^  cording  to  the  laws  of  inheritance  in  France.     The  de.fend- 

DECOUCHE     ants  claim  as  legatees  under  the  will  of  the  pretended  M.  F., 

SAVETIER      w^°'  navirig  no  rights  over  the  property  herself,  could  impart 

none  to  others.     Personal  property  follows  the  law  of  the 

place  where  the  intestate  is  domiciled,  in  whatever  place  that 

property  may  happen  to  be  situated.     (Huber  Pra.le.ct.  torn. 

[  *  201  ]        1.  278.  /.  3.  tit.  13.  de  succes.  ab  infest.  *collat.  (a)     This  is 

the  established  doctrine  of  law  recognized  in  the  Courts  of 

all  countries.     The  collateral  heirs  of  C.  J.  F.  have  "  no 

part  or  lot  in  this  matter."     They  knew,  that,  by  the  laws  of 

their  own  country,  they  could  assert  no  claim  to  what  their 

ancestor   had    irrevocably    conveyed   to    another,   in    1787. 

They  have  not,  therefore,  appeared  as  parties  ;  and  having 

no  interest  in  the  subject  of  controversy,  it  was  not  neces- 

sary to  make  them  parties  to  this  suit. 

Having  shown  that  the  plaintiffs  are  legally  entitled  to  all 
the  property  left  by  C.  J.  F.  at  his  decease,  it  will  be  no  less 
easy  to  show  that  they  are,  also,  entitled  to  all  the  additions 
made  to  that  property  since  his  decease.  The  authorities 
on  this  subject  are  equally  clear  and  explicit  ;  that  the  heir 
who  has  established  his  right  to  the  succession,  has  a  right 
to  demand  of  the  person  who  has  obtained  possession  of  the 
estate,  on  the  death  of  the  intestate,  not  only  the  property, 
as  it  existed  at  his  decease,  but  every  thing  which  it  has 
produced  since,  or  which  in  any  manner  appertains  to  it. 
(Dig.  lib.  5.  tit.  3.  1.  29.  s.  3.  (6)  Pothier,  Trait,  du  Droit 
de  Propriete,  n.  400,  n.  401,  Haber.  Prcelcct.  torn.  2.  755. 
lib.  5.  tit.  3.  de  Hare  d.  petit,  s.  14.  Pothier,  Pandect.  Just,  in 
Nov.  Ord.  Digest,  torn.  1.  p.  186.) 

Whether  the  possession  of  the  defendants  is  bona  fide  or 
mala  fide,  can  make  no  difference  as  to  their  obligation  to 
restore  every  thing  belonging  to  the  succession  claimed 
*  202  ]  *by  the  plaintiffs,  as  the  legal  heirs.  (Pothier,  ibid.  n.  426.) 
The  most  favorable  character  in  which  they  can  be  viewed, 
is  that  of  a  negotiorum  gestor,  in  which  character,  perhaps, 
they  would  be  entitled  to  compensation  out  of  the  profits 
made  of  the  property  of  the  intestate. 

Another  objection  has  been  stated  by  the  master.     It  is 

(a)  "  Sapefit  ut  diversum  jus  succedendi  ab  intestato  in  locis,  ubi  iefunctus 
habuit  domicilium,  atque  in  us  locis,  ubi  bona  sita  sunt,  obtineat,  tcuoitatur  se- 
cunclum  utrius  loci  leges  succcssio  regenda  sit.  Communis  et  recta  sententia 
est,  in  rebus  immobilibus  servandum  essc  jus  loci,  ubi  bona  sunt  sita  ;  quia  cum 
partem  ejusdem  territoriifaciunt,  diversce  jurisdictionis  legibus  adfici  non  pos- 
sunt  ;  verum  in  mobilibus  nihil  esse  causcn,  ali.ud  quam  jus  domicilii  sequamur  ; 
quia  res  mobiles  non  habent  affectionem  versus  territorium,  scd  ad  personam 
patris  familias  duntazat  ;  qui  aliud  quam  quod  in  loco  domicilii  obtinebat,  vo- 
luisse  videri  non  potest." 

(6)  "  Non  solum  ea  qua:  mortis  temporefuerunt,  sed  etsi  qucepo»tf'"  a  ia"m.cnt* 
nare  ditati  accesscrunt,  venire  in  harreditatis  pctitionem." 

158 


CASES  IN  CHANCERY.  202 

alleged  that  the  statute  of  limitations  of  this  state  is  a  bar,  at        1817. 
law  and  in  equity,  to  the  assertion  of  the  rights  of  the  plaintiffs.    x_^~v~«w 
It  cannot  be  denied,  that  the  recovery  must  be  sought,  and     DECOUCHI 
the   remedy  pursued,   according  to  the  lex  fori.     (Nash  v.     SAVETIEB. 
Tapper,  1  Caines's  Rep.  402.     Rugglcs  v.  Keeler,  3  Johns. 
Rep.  263.)     But  if  it  had  not  been  so  determined  by  the 
Supreme  Court,  in  the  cases  cited,  it  might  have  been  con- 
tended, that  a  statute  of  limitations  did  not  fall  within  this 
rule,  but  is  as  much  a  discharge  of  the  contract  as  an  insolvent 
or  bankrupt  act,  and,  therefore,  was  to  be  applied  according 
to  the  lex  loci  contractus.     One  of  the  learned  judges  of  the 
Supreme  Court  of  the  United  States  seemed  to  incline  to 
that  opinion,  in  the  case  of  ReimsdyJc  v.  Kane,  (1    Gallis, 
Rep.  371.  376.  per  Story,  J.)  decided  in  the  Circuit  Court 
of  the  United  States ;  and  he  grounded  himself  on  the  author- 
ity of  Casa  Regis.  (Decis.  130.  s.  33.  Decis.  179.)  (a) 

By  the  French  law,  the  claim  of  the  plaintiffs  would  only 
be  barred  by  the  longest  prescription,  which  is  thirty  years. 
(Lauriere  sur  la  Coutume  de  Paris,  torn.  1.  374,  375.  Code 
Civil,  art.  789—2262—2281.) 

The  parties,  by  their  contract  in  this  case,  stipulate  to 
oe  bound  by  the  law  of  France,  wherever  their  domicil  or 
property  may  be.  Even  Hubcrus,  who  originated  the  dis- 
tinction between  the  lex  fori  and  the  lex  loci  contractus, 
and  says,  that  the  former  is  to  control  as  to  real  property, 
admits,  that  in  case  of  a  marriage  contract,  the  latter  may 
prevail  even  as  to  real  property  situated  in  other  countries. 
*(Hub.  Pralect.  torn.  2.  p.  540.  1.  1.  tit.  3.  sec.  7.  p.  541.  [  *  203  j 
sec.  9.)  And  he  considers  the  plea  of  prescription  as  an- 
nulling and  discharging  the  contract.  "  Debitum  ex  vi 
legis  abolitum."  (Ib.  p.  1477.  1.  44.  s.  2.  tit.  3.)  Pothier, 
also,  in  his  treatise  of  Prescriptions,  after  stating  the  general 
rule,  that  the  lex  loci  rei  sitce  is  to  be  applied  to  prescriptions 
as  to  real  property,  says,  that  movable  property  is  governed 
by  the  law  which  governs  the  person  of  the  owner,  that  is, 
by  the  law  of  the  place  where  he  is  domiciled.  (Trait,  de  la 
Prescription,  part  2.  art.  5.  n.  251.) 

Again  ;  the  marriage  contract  is  a  specialty,  being  under 
a  notarial  seal ;  and  though  the  present  action  arises  inci- 
dentally on  this  contract,  yet  it  has  the  same  time  as  the 
principal  action  on  the  sealed  instrument.  (Cole  v.  Saxby, 
3  Etp.  N.  P.  Rep.  160.  per  Lord  Kenyan.} 

This  is  in  the  nature  of  a  writ  de  rationabili  parte  bonorum 
at  the  common  law,  or  of  the  petitio  hereditatis  of  the 
c'vil  law,  the  former  of  which,  is  not  bound  by  the  statute 

(a)  "  Ratio  est,  quia  statutum  intelligit  semper  disponere  de  cor.tractibus  fac- 
tis  intra  et  non  extra  territorium  suum." 

159 


203  CASES  IN  CHANCERY. 

1817.       °f  limitations,  (Gttfton,  109.)  nor  the  latter  by  the  prescriptio 

longi  temporis.  (Code,  lib.  1.  tit.  3.  s.  7.) 


Sampson,  contra.  The  master  has  reported  against  the 
proposed  compromise  being  for  the  interest  of  the  infants, 
on  two  grounds:  1.  That  neither  M.  S.,  nor  her  legal  rep- 
resentatives, is  entitled  to  any  part  of  the  proper  or  separate 
estate  of  C.  J.  F.,  deceased ; 

2.  That  if  they  were  so  entitled,  their  right  has  become 
barred  by  lapse  of  time. 

The  plaintiffs  supposed  that  the  master  had  mistaken  the 
import  of  the  marriage  contract;  and  they  obtained  the 
opinion  of  an  eminent  French  jurist  (Count  Real}  in  support 
of  their  own  conclusions  against  that  of  the  master.  They 
express  great  surprise  that  the  master  should  have  so  mis- 
conceived the  meaning  of  the  contract,  and  suppose  it  to  be 
owing  to  an  inexact  translation.  But  when  it  is  considered 
[  *  204  J  that  the  learned  and  logical  Pothier  *has  written  two  vol- 
umes to  explain  la  communaute  to  his  countrymen,  in  their 
own  language,  it  is  not  surprising  that  a  stranger  to  the 
language  and  laws  of  France  should  find  some  difficulty  in 
understanding  the  terms  of  the  contract.  It  is  said,  that 
the  word  "  propres,"  when  used  in  relation  to  communaute, 
has  a  meaning  widely  different  from  its  ordinary  acceptation  ; 
and  that  "  acquets,"  and  "  conquets,"  which,  on  all  occasions, 
are  regarded  as  synonymous,  are  here  used  in  direct  opposition. 
It  would  be  equally,  if  not  more  difficult,  for  the  most  learned 
and  able  French  lawyer  to  understand  an  English  marriage 
settlement,  and  all  the  corollaries,  from  the  rule  in  Shelly's  case. 

It  is  unnecessary  to  attempt  any  explanation  of  the  various 
terms  used  in  this  contract.  They  are  all  fully  commented 
on  by  Pothier,  and  all  their  modifications,  and  the  various 
exceptions  and  derogations,  are  stated  by  him  in  his  treatise 
de  la  communaute. 

The  master  conceives  that  the  two  principal  clauses,  the 
one  called  the  stipulation  or  reservation  de  propres,  and  the 
other  the  donation  mutuelle,  are  repugnant  to  each  other. 
and  that  the  latter  should  be,  therefore,  rejected,  on  the 
principle  that  the  first  clause  in  a  deed  is  to  prevail,  and  this 
last  clause  giving  what  is  already  disposed  of,  is  nugatory. 

After  mentioning  how  much  shall  enter  into  the  part- 
nership, (la  communaute,}  the  stipulation  is,  that  "  the  residue, 
with  whatever  may  accrue  to  the  parties  by  succession,  gift, 
legacy,  or  otherwise,  shall  be  in  severally  to  that  party  to 
whom  the  same  shall  come  and  belong,  and  to  the  repre- 
sentatives of  that  person  exclusively." 

It  is  agreed  that  this  is  not  a  donation,  but  a  reservation, 
which  gives  to  movable  property  the  quality  of  real ;  a 
160 


CASES  IN  CHANCERY.  204 

quality,  however,  ephemeral,  and  to  last  no  longer  than  until        1Q17. 
the  event  happens,  for  which   it  is  meant  to  provide,  when   *^r~^~ ^.^ 
it  ceases  to  be  realfatifor  propre.     It  is,  no  doubt,  a  clause     DECOUCHF. 
inserted  for  the  benefit  of  the  children  of  the  *marriage,  and     g     v- 
to  prevent  the  parents  of  the  opposite  line  from  succeeding       ,-  %  ^^  ^ 
to  any  part,  until  a  failure  of  all  the  children  of  the  marriage  ; 
so  that  they  first  succeed  to  each  other,  and  the  last  child  is 
to  have  the  whole,  and  the  surviving  parent  nothing ;  be- 
cause, in  having  the  quality  of  real  property  which  never 
ascends,  and  extended  by  the  term   aux  leurs,  the  children 
would  all,  in  succession,  have  the  benefit  of  it.     But  when 
the  last  child  dies,    the  rule  of  paterna  paternis,  materna 
maternis,  ceases  ;  and  the  property,  again  becoming  movable, 
no  longer  follows  the  artificial  direction,  but  the  surviving 
parent  succeeds  to  it,  as  the  property  of  his  child. 

But.  then,  what  is  to  be  the  effect  of  the  additional  terms 
de  cote  et  ligne,  unless  it  be,  that  the  property  shall  go  to 
collaterals,  in  failure  of  children  of  the  marriage,  and  not 
to  the  opposite  line  ?  It  is,  indeed,  not  easy  for  an  untutored 
mind  to  comprehend  how  so  plain  a  clause  should  be  of  so 
little  avail,  that  a  subsequent  clause,  without  a  new  consid- 
eration, should  abrogate  it.  The  authority  of  Pothier  him- 
self, (tie  la  Communaute,  n.  329.)  which  has  been  cited, 
shows,  that,  had  it  not  been  for  the  subsequent  clause  of 
donation  mutuelle,  the  same  property  that  is  to  go  to  the 
survivor  would  have  descended  to  the  heirs,  lineal  and 
collateral,  of  the  respective  parties,  under  the  general  de- 
scription, aux  lews  de  cote  et  Ugne,  excluding  from  the 
paternal  proprcs  the  maternal  line,  and  vice  versa. 

Is  not,  then,  the  clause  of  donation  mutuelle  repugnant  to 
the  first  stipulation,  which  reserved  this  property,  so  excepted 
from  the  communaute,  to  the  side  and  line,  paterna  paternis, 
materna  maternis  ? 

The  counsel  for  the  defendants  cannot  but  feel  great 
diffidence  in  urging  conclusions  so  different  from  those  of 
the  learned  counsel  for  the  plaintiffs,  and  of  the  eminent 
jurists  he  has  invoked  to  his  aid.  But  aside  from  the  legal 
subtilties  of  the  French  jurisprudence,  the  conclusion  of 
*the  master  would  appear  quite  satisfactory  and  just  to  a  [  *  206  ] 
person  of  common  sense  or  of  ordinary  understanding. 

It  is  said,  that  the  construction  given  by  the  master  would 
make  the  reservation  an  entail,  without  any  of  the  forms 
prescribed  by  the  ordinance  of  Chancellor  D' Aguesseau. 
But  the  reservation  would  not  amount  to  a  substitution,  if  a 
substitution  be,  as  it  is  called,  an  entail ;  for,  according  to 
Pothier.  the  quality  of  realisation  would  cease  as  soon  as 
the  property  vested  in  the  first  collateral,  as  it  would,  if  a 
simple  stipulation  of  propre  have  ceased  upon  the  first  par- 

VOL.  Ill  21  16 J 


CASES  IN  CHANCERY. 

1817.       tition  between  the  children  and  surviving  parent;  or,  if  auot 
'•~^^s-^~/  siews,  when  the  last  child  should  have  succeeded,  and  died 
PECOUCHE     without  issue,  and  without  making  any  disposition  of  it. 
SAVETIER          Again  ;  the  master  thinks  that,  as  all  the  property  C.  J.  F. 
left  must  have  come  to  him  alone  and  individually,  being  so 
long  separated  from  his  wife,  and  that,  as  it  did  not  come  to 
him  by  succession,  donation,  or  legacy,  it  must  have  come 
"otherwise;"  and,  if  so,  it  was,  by  the  stipulation,  his  own 
proprefatifreal,  by  virtue  of  the  term  "otherwise." 

But  Pothier  is  again  cited  to  show  that  the  word 
"  autrement"  upon  which  this  question  mainly  turns,  has, 
in  this  stipulation,  a  restricted,  or,  as  it  is  called,  a  categorical 
sense,  and  applies  only  to  such  objects  as  are  in  a  similar 
predicament  with  those  expressed,  namely,  succession,  donation, 
legacy.  There  is  clearly  no  mistake  in  the  translation  of  the 
word  autrement.  The  plain  English  is  "  otherwise ; "  and  to 
so  plain  a  word  the  master  has  given  the  obvious  meaning, 
that  is,  what  should  come  in  all  other  ways,  or  in  any  other 
way  or  manner. 

If  the  master  has  mistaken  this  matter,  it  is  no  discredit 
to  his  judgment ;  for  he  is  not  the  first  who  has  conceived 
that  this  clause  was  to  have  the  effect  of  a  substitution,  as- 
[  *  207  ]  suring  to  the  family  of  the  stipulating  party  all  the  ^movable 
property  which  came  from  that  line.  (See  Pothier,  Hid.  n. 
-339.  n.  352.) 

It  must  be  owned,  we  think,  that  the  meaning  given  to  the 
word  "  autrement"  savors  much  of  refinement ;  but  as  the 
whole  of  this  clause  is  discussed  by  Pothier,  it  is  only  neces- 
sary to  refer  again  to  that  writer,  and  leave  the  question  to 
the  better  judgment  of  the  Court. 

Next,  as  to  the  bar  of  prescription  by  the  statute  of  limita- 
tions or  lapse  of  time.  Our  statute  (1  N.  R.  L.  184.)  has 
no  saving  clause  for  plaintiffs  beyond  seas.  The  plaintiffs' 
counsel  reluctantly  admits  that  it  has  been  decided  by  the 
Supreme  Court,  in  the  cases  which  he  cites,  that  the  statute 
of  limitations,  which  is  the  lex  fori,  is  to  be  the  measure  of 
the  time  of  prescription.  This  is  sufficient  here.  To  go 
further  would  be  a  useless  waste  of  time  and  of  learned 
research . 

But  it  is  said,  that  this  contract  is  a  specialty,  or  in  nature 
of  a  specialty,  and  is,  therefore,  barred,  or  not  prescribed  by 
legal  presumption,  in  less  than  twenty  years.  The  authority 
(or  this  argument  is  no  more  than  an  intimation  of  Lord  Ken- 
yon,  an  obiter  dictum  of  that  judge,  at  circuit ;  and  the  case 
before  him  is  very  unlike  the  present. 

The  argument  derived  from  analogy  to  the  writ  de  ratio- 
nabiK  parte  bonorum  is  still  more  feeble.  That  was  a  writ  by 
the  custom  of  certain  counties ;  and  the  custom  of  the  county 
162 


CASES  IN  CHANCERY.  201 

served  for  it,  as  in  the  case  cited,  the  county  of  Nottingham.        1817. 
Tile  reason  of  the  judgment  in  that  case  was  special;  namely,  \^r-~^**^ 
that  it  was  an  original  writ  not  found  in  the  register,  and  not     DECOUCHE 
mentioned  in  the  statute,  as  one  of  the  actions  to  be  barred 
by  six  years ;  for  though  the  plea  was  non  detinet,  the  action  was 
not  detinue ;  and  in  this  case,  the  true  test  is   to  be  found 
whether  this  contract  is  a  specialty,  namely,  whether  it  would 
be  declared  on  as  such.     (Hutt.  169.) 

It  is  not  denied,  for  the  point  is  settled  by  the  case  of 
Bond  v.  Hopkins,  (1  Sch.  fy  Lef.  Rep.  429.)  that  if  the 
*equi  table  title  is  not  sued  for,  within  the  term  that  would  [  *  208 . 
bar  a  legal  title  of  the  same  nature,  the  Court  of  Equity  will 
not  relieve;  or,  in  other  words,  that  the  bar  at  law  is  a  bar  in 
equity. 

Tlie  plaintiffs'  claim,  if  any  thing,  is  for  a  distributive 
share  ;  and  the  statute  of  distributions  (1  N.  R.  L.  313.) 
gives  the  remedy  by  debt,  detinue,  or  account,  as  the  case 
may  require. 

The  counsel  then  proceeded  to  cite  and  comment  on  the 
various  authorities  to  be  found  in  the  books,  as  to  limitations 
or  prescriptions,  particularly  in  relation  to  trusts  and  frauds : 
Smith  v.  Clnj,  Ambler,  647.  S.  C.  3  Bro.  Ch.  639.  notes. 
Lacon  v.  Briggs,  3  Aik.  107.  3  Freeman,  55.  2  Eg.  Abr. 
578.  10  Vesey,  93.  S.  C.  2  Maddock's  Ch.  241.  1  Mitford, 
PL  213.  1  Ch.  Cas.  102.  1  Sch.  8f  Lef.  109.  1  Salk. 
154.  in  notes.  Gift.  Eq.  Rep.  228,  229.  Collins  v.  Good- 
hall,  2  Vern.  235.  Vin.  Abr.  Limitations,  T.  note.  Levellier 
v.  Mackworth,  S.  C.  Eg.  Cas.  Abr.  589.  pi.  8.  Parker  v. 
Ash,  1  Femora,  257.  Smallman  v.  Lord,  2  Aik.  71.  Town- 
?end  v.  Toivnscnd,  1  Bro.  C.  C.  554.  Beckford  v.  Wade,  17 
Vesey,  87.  10  Mod.  206.  1  Madd.  Ch.  79.  441.  2  Madd. 
Ch.  84.  113,  114. 

There  was  no  fraud  in  the  conduct  of  the  administratrix, 
the  mother  of  these  children,  for  when  she  joined  her  destiny 
to  that  of  their  father,  she  may  have  supposed  him  unmar- 
ried. Fraud  is  attended  with  concealment ;  and  an  intent  to 
cheat  is  of  its  essence.  Had  C.  J.  F.  been  wealthy,  and  she, 
knowing  him  to  be  a  husband  and  a  father,  had  formed  the 
design  to  rob  his  children  of  their  inheritance,  it  would  have 
been  a  gross  fraud.  But  she  found  him  poor,  and  by  her 
faithful  industry  and  good  management,  she  made  him  rich. 
Under  the  peculiar  circumstances  of  the  case,  every  presump- 
tion ought  to  be  indulged  in  favor  of  her  innocence. 

Admitting  that  time  does  not  bar  a  direct  trust,  as  between 
the  trustee  and  the  cestui  que  trust,  yet  the  cases  *cited  show       [  *  209  ] 
that  where  a  party  has  slept  on  his  rights  so  long  as  to  mani- 
fest an  acquiescence,  a  Court  of  equity  will  be  passive,  and 
will  not  lend  its  aid  to  afford  him  relief.     A  Court  of  equity, 

163 


209  CASES  IN  CHANCERY. 

1817.       independent  of  the  statute,  has  its  own  rules,  as  to  rejecting 
V^^NX-^.X  stale  demands,  and  discouraging  laches  and  neglect. 

DECOUCHE 

SAVETIER.  THE  CHANCELLOR.  This  is  an  amicable  suit  for  the  pur- 
pose of  settling,  under  the  authority  and  sanction  of  this 
Court,  the  controversy  subsisting  between  the  parties. 

The  facts  upon  which  the  plaintiffs  rest  their  claim  and  the 
defendants  their  defence,  are  not  in  dispute.  They  are  dis- 
closed and  admitted  by  the  pleadings.  A  proposition  was 
made  by  the  plaintiffs  for  a  settlement,  upon  terms  deemed 
honorable  and  beneficial  to  the  parties.  The  claim  went  to 
the  whole  of  the  assets  which  came  to  the  possession  and 
were  in  the  hands  of  the  defendants,  as  executors,  and  the 
proposition  was  to  accept  of  a  moiety  of  this  property  in 
satisfaction  of  the  claim.  All  the  parties  who  were  compe- 
tent to  give  their  assent,  agreed  to  the  proposition.  But  as 
two  of  the  defendants  were  infants,  the  sanction  of  the  Court 
was  requested,  and  an  order  of  reference  was  accordingly 
made  to  a  master,  to  examine  and  report,  whether,  in  his 
opinion,  the  terms  of  the  proposed  compromise  were  for  the 
interest  of  the  infants. 

The  master  has  reported,  that  it  would  not  be  for  the  in- 
terest of  the  infants  to  accept  of  the  terms,  and  he  has  as- 
signed his  reasons  at  large.  In  his  opinion,  the  claim  of  the 
plaintiffs  to  the  whole,  or  even  to  a  moiety  of  the  property  in 
question,  could  not  be  sustained,  if  the  cause  was  brought  to 
a  hearing. 

The  parties  have  again  submitted  the  case  upon  the  plead- 
ings and  the  master's  report ;  and   their  counsel  have  argue  I 
the  claim  upon  the  merits  extremely  well.     The  question  is 
[*210]       still,  whether  the  demand    has  such  foundation  *and  extent 
as  to  render  the  acceptance  of  the  terms  advisable. 

The  plaintiffs  are  the  lawful  representatives,  under  the 
French  law,  of  M.  S.,  the  true  and  lawful  wife  of  C.  ,7.  F. 
She  died  in  France,  in  1816,  a  widow  and  intestate,  and  the 
law  of  that  country  governs  the  inheritance  of  the  personal 
property  to  which  she  was  entitled  at  the  time  of  her  death. 
It  is  a  settled  principle,  that  the  descent  of  personal  property, 
wherever  situated,  must  be  taken  from  the  country  of  the 
intestate's  domicil.  Mobilia  personam  sequuntur,  immobilia 
situm.  (Hub.  Prtelec.  torn.  1.  278.  lib.  3.  de  Success,  ab.  Int. 
Collat.  Bempde  \.  Johnstone,  3  F'esey,  198.  Somerville  v. 
Somerville,  5  J^esey,  750.  Bruce  v.  Bruce,  2  B.  fy-  Puller, 
229.  note.  Desesbats  \.  Berquier,  1  Binney,  336.)  There 
can  be  no  doubt,  then,  that  the  plaintiffs  are  entitled  to  all 
the  right  to  the  personal  property  of  C.  J.  F.,  deceased, 
which  existed  in  his  widow,  at  her  death. 

Her  representatives  claim  the  whole  of  his  personal  prop- 
164 


CASES  IN  CHANCERY. 


-210 


srty,  by  virtue  of  the  marriage  contract  of  1787.  If  that 
marriage  contract  was  out  of  the  question,  or  could  be  waived, 
the  plaintiffs  would  be  entitled,  under  our  statute  of  distribu- 
tions, to  a  moiety  of  the  personal  estate  of  F.,  inasmuch  as 
he  died  intestate,  without  lawful  issue. 

The  claim,  to  a  certain  extent  at  least,  under  the  marriage 
contract,  or  the  claim  under  the  statute  of  distributions,  must 
prevail,  unless  barred  by  the  statute  of  limitations. 

I  shall  consider  the  claim  in  all  these  points  of  view ;  and 
though  I  shall  be  obliged  to  differ  from  the  master  in  the 
construction  of  the  marriage  contract,  as  well  as  on  other 
points  in  the  cause,  it  is  no  more  than  justice  to  him  to  declare, 
that  I  have  perused  his  report  with  much  respect.  It  affords 
evidence  of  the  ability,  diligence,  and  zeal,  with  which  he 
discharged  his  duty. 

1.  The  marriage  contract  was  executed  with  the  requisite 
formalities,  and  was,  doubtless,  valid  by  the  laws  of*Franci. 
It  declared  that  the  custom  of  Paris  should  govern  the  dispo- 
sition of  the  property  of  the  parties,  though  they  should  there- 
after settle  in  countries  where  the  laws  and  usages  were  different 
or  contrary.  The  construction  of  the  contract  was  thus  made 
to  depend  upon  the  lex  loci  contractus ;  and  without  this  pro- 
vision in  the  contract  itself,  there  would  be  no  doubt  of  the 
general  principle,  that  the  rights  dependent  upon  nuptial 
contracts  are  to  be  determined  by  the  lex  loci.  (Hub.  de 
Conflict.  Legum,  lib.  3.  <§>  9.) 

The  contract  is  set  forth,  at  large,  in  the  bill,  and  con- 
tains three  important  stipulations  :  1 .  The  general  declaration 
that  there  should  be  a  community  of  property  between  the 
parties,  according  to  the  custom  of  Paris ;  2.  The  special 
exception  as  to  part  of  the  property,  brought  into  common 
stock,  and  which  exception  declares,  that  of  the  goods  of 
the  parties,  (4,000  livres,)  there  shall  be  placed  in  common, 
by  each  party,  five  hundred  livres,  and  the  residue,  with 
whatever  else  shall  be  acquired  thereafter,  by  succession, 
gift,  legacy,  or  otherwise,  shall  be  in  severally,  to  that  person 
to  whom  the  same  shall  come  or  belong,  and  the  respective 
representatives  of  that  person,  exclusively,  in  the  line  of 
representation  of  the  person  to  whom  the  same  shall  come  ; 
3.  A  general  donation  to  the  survivor,  in  case  either  should 
die,  without  issue  living.  The  parties  mutually  give,  in  the 
most  available  manner,  to  each  other,  and  to  the  survivor, 
A'hich  is  in  like  manner  mutually  accepted,  all  the  estate  and 
property;  movable  and  immovable,  acquired  or  purchased, 
to  them  in  any  ways  belonging,  and  which  shall  belong,  in 
any  way  or  manner,  to  that  party  who  shall  first  die,  and 
from  the  day  of  the  decease  of  such  party,  and  of  whatever 
amount  the  same  may  be,  and  wherever  situated,  to  be 

165 


1817. 


[*211  ] 


Rights  depend- 
ent upon  nuptial 
contracts  are  to 
be  determined 
by  the  lex  loci 


211  CASES  IN  CHANCERY. 

1817.       enjoyed  by  the  survivor  as  his  or  her  several  property  exclu- 

v^,*— s/-^_x  sively,  from  the  day  of  the  decease  of  the  party  who  shall 
DECOUCHE  first  die.  The  donation  was  not  to  take  place,  if,  at  the  day 
SWETIER.  °f  the  decease  of  the  party  first  dying,  there  should  be  chil- 

I"  *  212  I  dren  *then  living,  born  of  the  marriage  ;  but  if,  nevertheless, 
there  should  have  been  children,  who  afterwards  should  have 
died,  or  entered  into  religious  profession  before  they  had 
made  a  valid  disposition  of  their  rights,  then  the  donation, 
of  which  the  effect  would  have  been  thus  suspended,  will 
resume  its  force  as  though  there  had  never  been  any  children 
of  the  marriage. 
French  ron-  Notwithstanding  the  general  declaration  in  the  first  part 

riag«.  °  r"  °f  *he  contract,  that  there  should  be  a  community  of  gopds 
between  the  parties,  according  to  the  custom  of  Paris,  yet 
immediately  after,  there  is  a  provision,  that  out  of  the  4,000 
livres,  mutually  and  equally  advanced,  there  should  be,  by 
each  party,  500  livres  placed  en  communaute,  and  the  residue 
should  remain  propre,  according  to  the  second  stipulation 
which  I  have  noted. 

To  a  person  unacquainted  with  the  provisions  and  terms 
«  of  the  French  law,  it  would  appear  that  the  first  clause  was, 
in  a  great  degree,  repealed  by  the  second.  By  the  one,  their 
goods  were  to  be  common,  arid  by  the  other,  only  one  fourth 
part  were  to  enter  into  community.  But  the  contradiction 
is  only  apparent,  and  the  subsequent  intermediate  stipulations 
in  the  contract  form  only  a  branch  of  this  same  peculiar 
socicte  de  liens  qit'un  homme  et  une  femme  contractcnt  lors- 
gii'ils  se  marient.  They  may  be  considered  as  appurtenant  to 
the  ordinary  convention  of  the  community,  according  to  the 
custom  of  Paris ;  and  their  object  was  to  withdraw  a  portion 
of  the  property  from  its  destiny  under  the  community,  in 
order  to  make  a  certain  provision,  in  the  event  of  either 
party  dying  leaving  children  of  the  marriage.  But  the  death 
of  the  husband,  without  lawful  issue,  rendered  the  special 
stipulations  inapplicable  and  useless.  There  is  to  be  no  sub- 
tractions or  deductions  and  divisions  of  property  in  this  case, 
seeing  that  no  issue  survived. 

The  term  propre,  when  used  in   relation    to  matters  in 
community,  has  a  different  meaning  from  that  applied  to  it 

[*213]  *when  used  in  other  matters  of  law.  It  is  used  for  the 
separate  property  of  the  parties  respectively,  as  contradis- 
tinguished from  that  which  is  placed  in  community,  strictly 
so  called.  Parties  often  stipulate,  in  their  contract  of  mar- 
riage, under  the  community  system,  that  the  residue  of  their 
property  shall  be  separate.  (Le  surplus  de  leur  biens  scront 
proprc.}  If  it  be  personal  property  or  movables,  it  is  called 
propres  conventionneJs,  or  propres  Jictifs ;  and  the  husband 
may  alienate  that  property,  during  the  coverture  :  it  is,  in 
166 


CASES  IN  CHANCERY.  213 

many  respects,  confounded  with  the  other  goods,  strictly  in        18)7. 
community,  and  may  be  applied  ad  sustincnda  onera  matri- 
monii.     (Pothier,  Traite  de  la  Communaute, n.  105.316 — 326. 
Argou,  Just.  torn.  2.  p.  77—84.)  SATI%«* 

The  3,000  livres  were  to  remain,  in  this  case,  separate 
or  propre.  If  alienated,  they  were  to  be  replaced  pursuant 
to  custom.  This  stipulation  in  the  contract,  in  respect  to  the 
restitution  on  the  death  of  the  husband,  of  the  price  of  that 
kind  of  property  alienated  during  the  coverture,  is  well 
known,  and  appears,  like  the  other  special  stipulations  in 
this  contract,  to  be  almost  a  formula  in  the  nuptial  contracts 
creating  the  communaute  de  biens. 

But  there  appears  to  me  (and  which  arises,  no  doubt,  Donate  mu 
from  the  imperfect  knowledge  which  I  have  on  this  subject) 
to  be  still  a  contrariety  between  that  part  of  the  contract 
which  declares  that  the  propres  conventionnels,  or  le  surplus, 
should  go  aux  leur  de  cote  et  ligne,  and  the  mutual  donation 
(donation  mutuelle]  at  the  conclusion,  which  gives  all  the 
property  of  the  parties,  (tons  les  biens,  meubles  et  immeubles, 
acquetes,  conquetes,  propres,  et  mitres?)  at  the  death  of  cither, 
to  the  survivor,  in  default  of  children  living.  I  should  have 
supposed,  from  the  explanation  given  in  the  books,  of  the 
terms  de  cote  et  ligne,  that  the  collateral  heirs  of  the  children 
dying  without  issue,  and  of  the  side  and  line  of  the  parent 
first  dying,  would  have  taken  that  separate  property,  or 
propres  fictifs  de  la  communaute,  *So  I  read  Pot/tier  and  [  *  2  4  "] 
Argou.  (Traite  de  la  Com.  No.  329.  List,  au  Droit  Fran. 
torn.  2.  p.  78 — 82.)  The  donation  mutuelle  is,  however,  tu 
operate  upon  all  the  property,  wherever  situated,  of  which 
the  party  may  die  possessed,  and  the  survivor  takes  it  all, 
except  in  the  single  case  of  children  living,  or  who  may  have 
disposed  of  the  same.  This  sweeping  clause  is  explicit  and 
peremptory,  and  certainly  controls  the  descent  of  the  prop- 
erty to  the  collateral  heirs  of  the  children. 

Those  donations  frequently  enter  into  the  contract  of 
marriage,  and  the  parties  can  give  to  each  other  whatever 
property  they  shall  possess  at  their  decease  :  the  French  law 
recognizes  such  donations,  and  holds  them  valid  and  ir- 
revocable, without  being  accompanied  with  delivery  or  pos- 
session. (Argou,  liv.  3.  ch.  14.  des  donat.  fait,  par  contrat 
de  manage.  Pothier,  Trait  des  donat.  entre  vifs,  sec.  2.  art. 
4.  Code  Civil,  No.  1082,  1083.  1087.) 

This  donation  was  in  full  operation  at  the  death  of  the 
husband,  in  1810;  and  the  casus  fcederis  occurred,  for  he 
died  without  issue  living  of  the  marriage.  His  wife,  as 
survivor,  took  all  his  personal  property,  under  the  donation, 
which  embraced  not  only  the  property  which  originally  en- 
tered into  community,  but  that  which  was  kept  separate  as 

167 


4  .      CASES  IN  CHANCERY. 

1817.  propres  conventionnels.  It  was  a  stipulation,  as  \ve  have  seen, 
which  the  parties  were  not  only  competent  to  make,  but 
which  seems  to  be  familiar  to  the  French  law.  The  original 
fun(l  which  constituted  the  coumunaute,  and  the  propres  jictifs 
which  were  kept  separate,  formed,  aggregately,  the  capital 
from  which  all  the  subsequent  property  was  produced  by  the 
industry  of  the  husband.  The  joint  increase  entered  into 
the  common  stock  of  the  communaute,  by  the  general  rule ; 
and  had  it  not  been  so,  this  increase  would  have  been  reached 
by  the  universality  of  the  donation. 

I  conclude,  that  the  plaintiffs  are  entitled,  on  the  true 
construction  and  operation  of  the  marriage  contract,  to  all 

*  215  ]       *the  personal  property  belonging  to  C.  J.  F.  when  he  died. 

But  I  give  this  opinion  with  distrust  and  diffidence,  owing 
to  a  very  imperfect  acquaintance  with  the  French  law,  and 
more  especially  with  this  curious  and  complicated  branch  of 
it;  and  I  should  not  have  hazarded  any  remarks  on  the  sub- 
ject, if  I  had  not  felt  myself  urged  by  duty.  Nor  will  it  be 
improper  to  mention  here,  that  an  opinion  of  Count  Real,  on 
this  very  marriage  contract,  has,  by  the  arrangement  of  the 
council,  been  submitted  to  my  inspection ;  and  his  able 
explanation  of  the  French  law  I  have  found  supported  by 
the  authorities  referred  to ;  and  it  has  much  increased  my 
confidence  in  the  conclusion  which  has  been  drawn. 

With  respect  to  the  net  produce,  or  increase,  of  that 
property,  since  the  death  of  the  intestate,  the  plaintiffs  are 
entitled  to  it,  also,  after  the  reasonable  charges  are  deducted. 
It  was  property  held  in  trust  for  the  widow,  and  for  their 
benefit,  as  the  legitimate  cestuij  gue  trusts.  This  appears, 
also,  to  be  the  general  doctrine  in  the  books.  Dig-  5.  3.  20. 
3.  Pothier,  Traite  du  Droit  de  Propriete,  n.  400 — 406. 
Hub.  Pralec.  lib.  5.  tit.  3.  de  Hered.  Pet.  §  14.) 

If  the  plaintiffs  are  entitled,  under  the  marriage  contract, 
as  representatives  of  the  surviving  widow,  to  all  the  personal 
estate  left  by  C.  J.  F.,  they  are  not  barred  from  asserting  the 
claim,  by  lapse  of  time. 

2.  The  person,  under  the  name  of  M.  F.,  to  whom  letters 
of  administration  on  his  estate  were  granted,  in  June,  1810, 
succeeded  to  the  possession  of  the  property,  not  in  her  own 
right,  but  expressly  as  trustee  for  the  party  having  right.  That 
party  was,  in  this  case,  the  true  and  lawful  widow  of  C.  /.  F. 
under  the  marriage  contract,  or  that  widow  and  the  next  of 
km,  under  our  statute  of  distributions.  She  took  the  prop- 
erty into  her  hands  as  administratrix.  This  was  a  direct  and 
express  trust,  and  she  could  not  have  set  up  the  statute  of 

*  216  ]       limitations,  as  a  bar  to  the  widow  *and  next  of  kin.      It 

would  be  unjust  for  the  person  who  takes  possession  of  the 
property  of  the  intestate,  under  the  authority  of  law,  quo 
168 


CASES  IN  CHANCERY.  216 

administratrix,  to  be  at  liberty,  after  six  years'  possession,  to        1817. 
set  up  the  statute  of  limitations,  as  a  bar  to  the  cestuy  que  ^^~^~^_/ 
trusts.     All  the  cases  admit,  that  no  time  bars  a  direct  trust,     DECOUCHE 

as  between  trustee  and  cestuu  que  trust.     The  settled  rule  is, 

11111        i  c    i  11          SAVETIER. 

(and  so  it  was  recently  declared  by  the  master  01  the  rolls,     No  j        ,{ 
in  Cholmondeley  v.  Clinton,  2  Merivale,  360.)  that  so  long  as  time  is  a  bar  to 
a  trust  subsists,  the  right  of  a  cestuy  que  trust  cannot  be  barred  *s  beTwewMhe 
by  the  length  of  time  during  which  he  has  been  out  of  pos-  trustee  ami  ces- 
session,  and  that  he  can  only  be  barred  by  barring  and  ex-  iuy(iue  trust- 
eluding  the  estate  of  the  trustee.     This  general  rule  applies 
to  this  case ;  for  an  administrator  is  a  trustee  for  the  party 
entitled  by  law.     His  very  office  is  a  trust,  and  he  can  take 
in  no  other  capacity.     Lord  Hardwicke  said,  (2  Vesey,  482.) 
that  executors  and  administrators  were,  to  many  purposes, 
considered,  in  chancery,  as  trustees. 

There  is  a  class  of  cases  which  admit  a  reasonable  time  to  be     But  where  a 
a  bar ;  but  these  are  cases  in  which  a  party  is  turned  into  a  S^"sionla^rf 
trustee  by  matter  of  evidence  merely,  and  who  took  possession  property  m  his 
originally  in  his  own  right,  and  was,  prima  facie,  the  owner.  ^a^^.li^ 
Thus,  in  Bonny  v.  Ridgard,  (cited  in  4  Bro.  130.  138,  and  in  by    matter  of 
17  Fesey,  97.)  the  fraudulent  purchaser  of  a  leasehold  estate  ^Smclion,  °r 
from  an  executor,  was  not  permitted,  by  Lord  Kenyon,  to  be  changed  into  a 
turned  into  a  trustee  for  the  children  of  the  testator,  in  con-  ^"Time  mayPbe 
sequence  of  the  great  lapse  of  time  between   the  purchase  pleaded  in  bar. 
and  the  filing  of  the  bill.     So,  in  the  cases  of  Andrew  v. 
Wrigley,a.ndBeckfordv.  Wade,  (4  Bro.  125.    17  Vesey, 87.) 
the  suits  were  brought  to  disturb  purchasers,  on  the  ground 
of  fraud,  and  to  turn  them  into  trustees,  by  construction ; 
and  the  Court  held,  that  in  these  cases  of  a  possible,  eventual 
trust,  depending  upon  proof,  length  of  possession  was,  and 
ought  to  be,  a  bar,  upon  the  principle  of  the  statutes  of  lim- 
itations.    But  these  cases  have  no  relation  to  suits  against 
*the  very  executor  or  administrator,  by  the  next  of  kin,  or       [*217] 
other  person  entitled  to  the  distribution  of  the  assets.     The 
executor,  though  he  may  plead  the  statute,  as  against  a  cred- 
itor, (Webster  v.  Webster,  10  Vesey,  93.)  can  never  plead  the 
statute  of  limitations  as  a  bar  to  a  legacy.     (  Vide  the  cases 
in  1  Johns.  Ch.  Rep.  316.)     Where  even  a  trust  estate  is     An  execmoi 
created  by  will  to  pay  debts,  such  a  trust  is  held  not  to  be  Se^statotc  Cof 
within   the  statute  of  limitations.     (Norton  v.  TurviU,^,P.  limitation  m  bar 
Wins.  145.)     The  true  ground  of  the  equitable  jurisdiction  though  he'mat 
over  executors  and  administrators,  in  compelling  the  payment  against  a  creu 
of  legacies  and  distributive  shares,  is,  that  they  "are  trustees 
for  those  purposes.    This  is  the  declared  doctrine  in  Farring- 
ton  v.  Knightly,  and  Wind  v.  Jekyl.     (1  P.  Wms.  249.  572.) 
The  statute  of  distributions,  say  the  books,  was  intended  as 
the  will  of  the  intestate,  and  the  succession  to  personal  estate 

VOL.  III.  22  169 


217  CASES  IN  (JHANCEll\. 

1817.       is  as  much  fixed  as  the  title  of  the  heir  to  the  real  estate  at 

^^~^~+^s  common  law ;  and  on  the  ground  of  the  trust  in  the  adminis- 

DKCOUCHE     trator,  chancery  assumed  the  power  of  compelling  distribu- 

SAVETIER      ^on   as  soon  as    the  statute  was  passed.       (Winckebteo  v. 

An  adnvinis-  Nordoffe,    2   Rep.    in    Ch.   367.      Matthews    v.   JSewby,  1 

trator,       being    J^em.   133.) 

le^up'the^tat-  I  am  not  prepared  to  say  that  the  statute  of  limitations 
ute  of  limita-  might  not  be  set  up  by  the  persons  to  whom  the  administra- 
th<r  next  o"  kin,  trix  bequeathed  the  trust  property,  provided  sufficient  time 
xir  the  persons  had  elapsed  after  her  executors  or  legatees  had  succeeded  to 
distribution  'of  the  possession.  There  may,  perhaps,  be  a  sufficient  analogy 
assets.  between  such  a  case  and  that  of  the  purchasers  under  the 

executors  in  the  cases  to  which  I  have  referred.     I  mean  only 
to  declare,  that  no  time  is  to  be  computed  against  the  plain- 
tiffs, while  the  administratrix  had  possession  of  the  property  ; 
and  the  subsequent  time  falls  short  of  any  legal  bar. 
The  time  of       It  will  be  observed,  that  I  have  considered  the  question  of 
ii'mlais°no0vfern-  time  as  governed  by  our  own  law,  and  that  the  limitation  of 
[  *  2181       suits  was  to  be  taken  from  the  lex  fori,  and  not  from  *the  lex 
ed  by  the  lex  loci  contructus.     The  counsel  for  the  plaintiffs  contended  that 
{effort  contra?-  tne  French  law  of  prescription  ought  to  govern  in  this  case  ; 
in*  (which  was  stated  to  give  a  period  of  thirty  years,)  and   he 

called  my  attention  to  a  doubt,  upon  the  question,  raised  in  the 
case  of  fran  Reimsdylc  v.  Kane,  (1  Gallis,  Rep.  371.)  in  which 
the  inclination  of  the  Court  appeared  to  be  in  favor  of  the 
foreign  prescription  in  cases  between  foreigners ;  and  it  was 
considered  as  an  important  question  open  for  consideration. 

The  respect  which  I  feel  for  every  opinion  of  the  learned 
judge  who  gave  that  intimation,  induces  me  to  pause  for  a 
moment  upon  the  point. 

It  is  not  for  me  to  say,  whether  this  can  or  cannot  be  an 
open  question  in  Courts  of  the  United  States;  but  it  is  suffi- 
cient for  my  direction,  that  the  rule  is  settled  in  this  state,  by 
the  judgment  of  the  Supreme  Court,  in  Ruggles  v.  Keeler. 
(3  Johns.  Rep.  263.)  That  decision,  as  it  appears  to  me,  is 
not  only  well  supported  by  authority,  but  is  founded  on  prin- 
ciples of  public  convenience  and  policy,  which  have  met  with 
a  very  general  assent  and  reception.  Our  statute  of  limita- 
tions contains  no  exception,  in  form,  of  foreigners  or  of  for- 
eign contracts,  but  is  general  and  peremptory  in  its  terms. 
And  why  should  our  Courts  be  disturbed  by  the  litigation  oi 
stale  demands  of  foreigners,  grown  difficult  and  obscure  by 
time,  when  an  action  upon  such  demands  is  denied  to  our 
own  citizens,  by  the  wise  policy  of  the  law  ?  It  is  a  question 
of  municipal  convenience  and  public  utility,  which  every 
government  has  not  only  a  right  to  consult,  but  is  bound  in 
duty  to  promote.  The  plea  of  the  statute  of  limitations  does 
170 


CASES  IN  CHANCERY.  215 

not  touch  the  merits  of  the   contract.     It  merely  bars  the        1817. 
remedy,  in  the  particular  domestic  forum,  and  does  not  con-  v^x-^-**— ' 
elude  the  plaintiff  in  his  own,  or  in  any  other  foreign  country.     DECOUCH*. 
To  render  the  matter  of  the  judgment  a  rcsjudicata,  it  is  ne-     yAV^TI£It 
cessary  that  the  grounds  of  the  judgment  should  be  the  same. 
(Graham  \.  Maxwell,  2  Dow.  314.)     *The  reason  of  the  ex-       [  *  219  ] 
ccptio  rei  judicatce   is  to  prevent  endless  litigation  and  dis- 
cordant decisions ;  (Dig.  44.  2.  6.)  the  reason  has  no  appli- 
cation to  such  a  plea.     The  statute  of  limitations  has  refer- 
ence to  the   ordinatio,  not  to  the  decisio  litis  ;  and,  therefore, 
to  use  the  language  of  the  civilians,  servanda  est  consuetudo 
loci  ubi  causa  agitur. 

In  the  provinces  of  the  Netherlands,  the  local  limitation 
where  the  action  is  brought,  prevails ;  and  Huberus  (De 
Conflict  u  Legum,  §.  7.)  cites  two  adjudged  cases  to  that  effect, 
prior  to  the  year  1680.  He  considers  the  rule  of  pre- 
scription as  affecting  the  remedy,  and  not  the  merits  of  the 
case.  Ratio  hcec  est,  quod  prascriptio  et  executio  non  perti- 
nent ad  valorem  contractus,  sed  ad  tempus  et  modutn  actionis 
institiiendfe.  The  Supreme  Court  of  Massachusetts,  in 
Pearsall  v.  Dwight,  (2  Tyng,  84.)  adopted  the  rule,  for  the 
same  reason;  and  that  decision  ought  to  be  regarded  as 
authority,  for  it  was  the  unanimous  opinion  of  the  Court, 
delivered  by  the  late  Ch.  J.  Parsons,  whose  vigorous  mind 
was  richly  endowed  with  various  learning,  and  who  possessed 
that  quick  discernment  and  deep  knowledge  of  legal  prin- 
ciples that  justly  rendered  him  the  ornament  and  pride  of 
his  country. 

There  can  be  no  doubt  that  the  same  rule  is  considered 
as  the  settled  doctrine  in  the  Courts  at  Westminster  Hall. 
Thus,  in  Dupleix  v.  De  Rovcn,  (2  Fern.  540.)  the  parties  were 
Frenchmen,  and  the  debt  was  contracted  in  France  ;  and  yet 
the  lord  keeper  made  no  scruples  of  allowing  a  plea  of  the 
English  statute  of  limitations.  This  was  in  1705.  In  the 
late  case  of  Williams  v.  Jones,  (13  East,  439.)  the  Court  of 
the  K.  B.  held,  explicitly,  that  the  English  statute  of  lim- 
itations was  to  govern,  notwithstanding  the  parties  had 
contracted  abroad,  and  resided  abroad  so  long  as  to  have 
been  barred  by  the  foreign  statute  of  limitations.  The 
statute  of  limitations  was  considered  barring  the  remedy 
only,  not  as  extinguishing  the  right.  Lord  Ellenborough 
said,  "  There  was  no  law  or  authority  for  saying,  that  where 
there  is  an  extinction  of  the  remedy  *only  in  the  foreign  [*220j 
Court,  that  shall  operate,  by  comity,  as  an  extinction  of  the 
remedy  here  also." 

Tho  same  rule  is  now  the  settled  law  in  Scotland,  where 
the  civil  law  is  adopted  as  the  common  law  of  the  land. 
Professor  Erskine,  in  his  institutes  of  the  Scotch  law,  (vol. 

171 


220  CASES  IN  CHANCERY. 

1817.       2,531.  <§>  48.)  says,  that  the  decisions  there  had  formerly 

\-^-~v-^-x  been  fluctuating  on  the  point,  but  that  the  latest  cases  had 

DECOUCHE     made  their  own  law  of  limitation  the  rule  of  their  judgment ; 

SAVETIER  an<^  tn*s  s^e  °^  tne  question  ne  considers  to  be  founded  on 
the  better  reason.  Lord  Kaimes,  (Principles  of  Equity,  vol. 
2.  p.  353.)  speaks  with  peremptory  decision,  and  says,  "It 
ought  never  to  be  made  a  question ;  for  our  own  prescription 
must  be  the  rule  in  every  case  that  falls  under  it."  The 
same  rule  is,  also,  declared,  in  equally  explicit  terms,  by  Voet, 
in  his  Commentaries  on  the  Pandects.  (Com.  ad  Pand.  lib. 
44.  tit.  3.  <§>  12.)  Si  praseriptioni  implendce.  alia  prcefinita 
sint  tempora  in  loco  domicilii  actoris,  alia  in  loco  ubi  reus 
domicilium  fovet,  spectandum  videtur,  tempus,  quod' obtinet  ex 
statuto  loci,  in  quo  reus  commoratur. 

The  counsel  for  the  plaintiffs  also  referred  to  a  passage  in 
Pothicr,  (Trait,  de  la  Prescription,  No.  251.)  to  show  that 
the  law  of  prescription,  of  the  plaintiff's  domicil,  ought  to 
govern ;  but  I  apprehend  that  Pothier  alludes  only  to  the 
various  and  unequal  periods  of  limitation  prevailing  in  the 
different  provinces  of  France,  of  which  he  gives  examples 
in  the  section  succeeding  the  one  cited.  He  was  not  speak- 
ing of  foreign  rules  of  limitations,  extra  territorium.  Pothicr 
has,  again  and  again,  recognized  (Trait,  des  Ob.  No.  642. 
654.  684.)  the  distinction  admitted  in  so  many  authorities., 
that  a  plea  of  the  time  of  limitation  does  not  extinguish  the 
debt,  but  only  bars  the  remedy.  The  French  law  of  pre- 
scription, like  ours,  appears  to  be  intended  to  apply  to,  and 
govern,  directly  and  positively,  all  persons  whomsoever,  who 
cannot  bring  themselves  within  one  of  the  exceptions. 
(Trait,  de  la  Prescription,  No.  247.  Code  Napoleon, 
No.  2251.) 

My  opinion,  accordingly,  is,   that  the  plaintiffs  are  entitled 

*  221  ]       *to  the   whole  of  the  property  in  question  ;    and   that  the 

proposition,  on  their  part,  to  divide  the   property  with  the 

unfortunate  children  of   C.   J.  F.,  who  are  defendants,  is 

very  beneficial  to  the  latter,  and  ought  to  be  accepted. 

3.  I  am  of  opinion  that  the  proposed  compromise  is,  also, 
beneficial  in  another  view  of  the  case. 

The  widow  might  have  waived  her  rights  under  the  mar- 
riage contract,  and  have  sued  for  her  moiety  of  the  personal 
estate  of  her  husband,  under  our  statute  of  distributions. 
I  see  no  impediment  to  her  right  of  election.  The  contract 
was  for  her  benefit ;  and  to  waive  it  was  yielding  her  title  to 
the  whole,  and  accepting  of  a  part.  It  is  said,  (Inst.  an  droit 
Francois  par  Argou,  torn.  2.  p.  30.)  that  upon  the  dissolution 
of  the  community,  by  the  death  of  the  husband,  the  wife,  or 
her  heirs,  may  renounce  or  accept  her  rights  under  it.  The 
representatives  of  the  husband  would  surely  be  estopped,  in 
J72 


CASES  IN  CHANCERY.  22  i 

this  case,  from  setting  up  the  marriage  contract  as  a  bar  to 
her  claim  to  a  distributive  share.  That  contract  was  made 
and  intended  for  the  connubial  state ;  and  to  give  it  the  due 
effect,  the  parties  ought  to  have  continued  faithful  to  each 
other;  instead  of  which,  we  find  that  the  wife  was  deserted 
by  the  husband,  in  1792,  after  he  had  formed  an  adulterous 
connection :  his  lawful  wife  was  left  without  protection  and 
support ;  and,  after  a  great  number  of  years,  she  ended  her 
life  in  an  hospital.  It  is  not  for  the  representatives  of  such  a 
husband  to  set  up,  in  bar  of  a  distributive  share,  under  our 
statute,  a  marriage  contract  which  he  had  thus  violated  and 
abandoned.  If  the  widow  might  have  waived  her  benefits 
under  the  contract,  and  have  resorted  to  her  title  at  law,  her 
representatives,  who  have  succeeded  to  her  rights,  are  entitled 
to  the  same  privilege. 

If  the  demand  was  now  of  a  moiety  of  the  personal 
estate,  under  the  statute  of  distributions,  there  could  be  no 
bar  to  the  claim,  for  we  have  already  seen  that  the  acZmVt- 
istfratfn'r,  holding  that  moiety  in  trust,  could  not  have  *inter-  [  *  222  ] 
posed  that  statute.  If  the  statute  runs  at  all  in  such  a  case, 
it  can  only  commence  from  the  time  that  the  defendants 
succeeded  to  the  property,  under  an  assumed  right,  as  owners 
by  virtue  of  her  will. 

It  may  be  said  here  that  the  statute  gives  an  action  at  law 
of  debt,  detinue,  or  account,  to  any  person  entitled  to  a  dis- 
tributive share.  This  is  a  recent  provision,f  and  was  no  t  VM.  i  R. 
doubt  intended  for  the  ease  and  favor  of  the  persons  entitled  ^}K'l^d8^ 
to  distributive  shares.  But  I  should  apprehend  it  was  not  ck.  74.  ««r.  is. 
the  intention  of  the  legislature,  by  that  favor,  to  abridge  the  j^  °-f  A}'nL' 
long-established  remedy  which  legatees  and  the  next  of  kin 
possessed  in  this  Court.  It  could  hardly  have  been  intended, 
that  executors  and  administrators  might  violate  their  trust, 
and  appropriate  the  estate  to  themselves,  if  the  legatees,  or 
next  of  kin,  had  not  made  their  demand  within  the  short 
period  of  six  years.  Such  a  new  and  alarming  relaxation  of 
the  powers  of  this  Court  over  such  trustees,  is  not  to  be  pre- 
sumed, and  could  not  have  been  intended.  I  admit  the 
general  principle.,  that  if  the  equitable  and  legal  titles  so  far 
correspond,  that  the  only  difference  between  them  is,  that 
the  one  must  be  enforced  in  equity,  and  the  other  at  law, 
the  equitable  title  must  be  acted  upon  in  the  same  time  that 
the  legal  should  be,  or  it  will  be  barred.  But  this  rule  is 
where  there  is  no  subsisting  trust;  and  Lord  Manners  men- 
lions  that  circumstance,  as  forming  an  exception  to  the  rule 
which  he  so  emphatically  lays  down.  (Medlicott  v.  O'Donel, 
1  Ball  and  Beatty,  166.)  Courts  of  equity  are  not  within 
the  words  jf  the  statute  of  limitations :  that  statute  is 
adopted  and  applied,  by  the  discretion  of  this  Court,  to  suits 

173 


222  CASES  IN  CHANCERY. 


1L17.       m  equity?  tnat  are  analogous  to  those  in  which  it  is  applied 

v-^-N/^_x  at  law.     But  it  has  been  always  the  doctrine  of  the  Court 

DECOCCHE     that   legacies   are    not    within    the   statute    of    limitations. 

SAVETIFR      (^orlctr  v.  Ash,  1  Vern.  256.)     The  same  reason  applies 

to   distributive    shares,    and    with    equal   force.     They    are 

[  *  2.J3  ]       considered   in,  at  least,  as  strong  a  *light  as  debts  by  spe- 

cialty, and  are  not  barred,  except  under  the  same  prescription, 

arising  from  lapse  of  time,  that  would  bar  a  bond.     Within 

that  time,  I  should  not  be  willing  to  protect  an  executor  or 

administrator  from  the  payment  of  a  legacy  or  distributive 

share,  when  he  admits  the  trusts  and  admits  the  assets,  and 

sets  up  only  the  lapse  of  time. 

The  demand  is  founded  on  documents  partaking  of  the 
nature  of  a  record,  as  the  probate  in  the  one  case,  and  the 
inventory  in  the  other.  The  principle  on  which  the  Court 
proceeded,  in  Pomfret  v.  Windsor)  (2  Ves.  472.)  was  that 
the  statute  of  limitations  affords  no  protection  to  an  adminis- 
trator against  the  party  calling  for  his  distributive  share, 
though,  no  doubt,  an  administrator,  as  well  as  an  executor, 
may  plead  the  statute  against  a  creditor  of  the  estate,  as  was 
done  in  3  Aik.  70.  They  are  only  responsible  in  the  pecu- 
liar character  of  trustees,  and  to  the  extent  of  that  character, 
in  respect  to  legatees  and  the  next  of  kin,  and  in  some  other 
special  cases. 

If  the  plaintiffs,  then,  are  entitled  to  claim  the  distributive 
share  of  the  wife,  they  could  recover  interest  upon  it,  at  least 
after  one  year  from  the  intestate's  death,  seeing  that  the  assets 
were  appropriated  by  the  administratrix  to  the  purposes  of 
business,  and  yielded  great  profit. 

This  recovery,  however,  would  not  exceed,  and  would 
probably  fall  short  of,  a  moiety  of  the  property  now  offered 
to  be  divided  between  the  parties  to  this  suit.  But  it  is  to 
be  observed,  that  if  the  marriage  contract  is  laid  aside,  the 
next  of  kin  of  C.  J.  F.  would  be  entitled  to  the  other  moiety 
of  his  estate,  which  would  sweep  away  the  whole  from  these 
unfortunate  children  who  are  now  before  the  Court.  The 
terms  of  compromise  are  therefore  beneficial,  as  well  as  fair, 
in  this  point  of  view,  so  that,  quacunque  via  data,  the  terms 
ought  to  be  accepted. 

I  shall,  therefore,  declare,  that  it  is  for  the  interest  of  the 
[  *  224  ]  infants  that  one  equal  moiety  of  the  property  in  the  *posses 
sion  of  the  two  defendants,  who  are  executors  and  guardians, 
after  deducting  therefrom  their  reasonable  expenses  and  costs. 
*n  the  defence  of  this  suit,  be  paid  to  the  plaintiffs,  in  full 
satisfaction  of  their  claim,  and  that  the  residue  of  the  costs 
be  borne  by  the  parties  respectively. 

Order  accordingly 
174 


CASES  IN  CHANCERY  224 

1817, 

LlVINGSTCX 

B.  LIVINGSTON  against  KANE  and  others.  K/N* 

i  creditor  filed  a  bill  to  set  aside,  or  to  obtain  relief  against,  a  judgment 
confessed  by  his  debtor  in  the  Supreme  Court,  on  the  ground  of  fraud, 
and  obtained  an  injunction  to  stay  all  proceedings  on  the  judgment; 
and  while  the  suit  was  pending  in  this  Court,  he  proceeded  at  law, 
and  recovered  judgment  against  his  debtor,  and  issued  execution  there- 
on, under  which  the  property  of  the  debtor  was  advertised  for  sale.  The 
Court  refused  to  dismiss  the  bill,  on  the  petition  of  the  defendants,  but 
ordered  the  plaintiff  to  make  his  election,  either  to  stay  his  execu- 
tion at  law  during  the  continuance  of  the  injunction,  or  consent  to 
have  the  injunction  dissolved;  and  the  plaintiff  refusing  to  make  an 
election,  the  injunction  was  forthwith  dissolved. 

PETITION  of  the  defendants,  stating  that  the  plaintiff,  in  December & 
behalf  of  himself,  and  such  other  creditors  of  the  defendant 
James  Kane  as  should  come  in  and  contribute  to  the  expense  of 
the  suit,  on  the  27th  of  August  last,  filed  his  bill  against  the 
defendants,  for  relief,  &c.  That  an  injunction  was,  on  the 
same  day,  issued,  enjoining  the  defendants,  (except  J.  7T.) 
not  to  proceed  to  execution  on  a  judgment  mentioned  in  the 
said  bill,  against  the  estate  of  the  said  J.  K.,  nor  to  a  sale  on 
any  execution  already  issued.  That  all  the  defendants  answer- 
ed the  bill  on  the  20th  of  September ;  but  the  plaintiff,  not- 
withstanding the  said  suit  and  injunction,  has  prosecuted  his 
suit  at  law  in  the  Supreme  Court  against  J.  K.,  and  is  pro- 
ceeding, under  an  execution,  to  sell  the  real  estate  of  J.  K., 
and  had  advertised  *it  for  sale  in  Albany,  on  the  31st  of  De-  [  *  225 
ccmber  instant.  The  defendants  prayed  that  the  plaintiff 
might  be  compelled  to  elect  to  proceed  in  this  Court,  or  in 
the  Supreme  Court,  and  that,  in  the  mean  time,  all  the  pro- 
ceedings be  stayed  ;  and  that  if  the  plaintiff  should  elect  to 
proceed  in  this  Court,  that  he  be  restrained  from  proceeding 
at  law ;  but  if  he  should  elect  to  proceed  at  law,  or  should 
not  make  his  election  within  eight  days,  &c.,  that  then  the 
bill  should  be  dismissed,  with  costs. 

It  appeared  from  the  pleadings  in  the  cause  here,  that 
John  Kane  and  James  Kane  were  indebted  to  the  plaintiff, 
by  two  several  bonds,  one  dated  the  27th  of  October,  1814,  for 
20,000  dollars,  and  the  other  for  15,600  dollars,  dated  the 
1 1th  of  April,  1815,  on  which  the  plaintiff  had  commenced 
separate  actions  in  the  Supreme  Court.  That  John  and  James 
K.  had  stopped  payment,  and  were  believed  to  be  insolvent. 
That  James  K.,  on  the  10th  of  May  last,  confessed  a  judg- 
ment in  the  Supreme  Court,  infavor'of  the  other  defendants, 
Charles  Kane,  Oliver  Kane,  and  Dirck  Van  Schelly  ne,  for 
450,000  dollars,  which  judgment  the  plaintiff  charged  to  be 

175 


225  CASES  IN  CHANCERY. 

fraudulent  and  void,  inasmuch  as  it  gave  those  defendants  an 
unjust  preference  over  the  other  lonafide  creditors  of  James 
LIVINGSTON  K.,  or  if  not  void  on  that  account,  the  judgment  was  for  a 
KANE  much  larger  sum  than  was  really  due  to  them,  and  was  con 
fessed  for  the  purpose  of  enabling  them,  at  the  sheriff's  sale 
under  an  execution,  to  purchase,  for  a  very  inadequate  con- 
sideration, all  the  real  estate  of  James  K.,  which  was  worth, 
in  their  estimation,  more  than  500,000  dollars ;  and  that  the 
plaintiff  believed  that  these  defendants  were  not  actual  cred- 
itors of  James  K.  at  the  time  the  judgment  was  confessed,  but 
were  only  under  some  responsibilities  for  him,  and  that  to  an 
amount,  far  less  than  the  judgment.  The  plaintiff  prayed 
that  the  defendants  (except  James  Jf.)  might  be  decreed  to 
enter  satisfaction  of  the  judgment,  if  it  should  appear  to  be 
[  *  226  ]  fraudulent,  and  if  not,  that  they  might  not  be  *permitted  to 
recover  on  it  more  than  what  was  really  and  fairly  due  to 
them,  so  as  to  make  the  least  possible  sacrifice  of  the  real 
estate  of  James  K.,  and  also  for  an  injunction,  which  was 
granted.  The  ansivers  of  the  defendants  stated,  that  the 
judgment  against  James  K.  was  taken  and  entered  up  in  good 
faith,  and  for  bona  fide  debts  and  responsibilities ;  that  a 
small  part  of  the  consideration  was  for  debts  due  to  them  in- 
dividually, and  the  greater  part  for  and  in  behalf  of  cestuy 
que  trusts,  or  creditors  of  James  K.,  for  whom  they  had  be- 
come sureties. 

The  supplemental  bill  of  the  plaintiff,  filed  the  24th  of 
October  last,  stated,  that  the  plaintiff  had  obtained  and  enter- 
ed up  judgment  in  the  Supreme  Court  on  the  two  bonds  of 
James  Kane  to  him  ;  that  he  had  issued  executions  on  the 
judgments,  and  delivered  the  executions  to  the  sheriff  of 
Albany,  who  had  levied  on  the  real  estate  of  James  Kane,  and 
advertised  it  for  sale. 

An  affidavit  of  the  plaintiff  was  read,  stating,  that  on  the 
18th  of  October  last,  John  and  James  Kane  agreed  with  the 
plaintiff  that  he  might  issue  executions  against  their  property, 
on  the  said  judgments,  and  that  under  that  agreement  the 
executions  were  delivered  to  the  sheriff  of  Albany. 

Henry,  in  support  of  the  petition.  He  cited  1  liar.  Pr. 
261.  Mitf.  PL  200.  Cooper's  Eq.  PL  276.  1  Vesey,jun. 
591.  2  Turner,  Ch.  Pr.  615. 

R.  Sedgwick,  contra.  He  cited  3  P.  Wms.  90.  2  Aik. 
119.  1  Vesey,jun.  159.  2  Fern.  32. 

THE  CHANCELLOR.  This  is  not  the  ordinary  case  of  an 
election.  The  plaintiff  is  not  prosecuting  the  defendants 
here  and  at  law,  "  for  one  and  the  same  matter  or  demand," 
176 


CASES  IN  CHANCERY. 

according  to  the  language  of  the  books  in  such  cases  He 
has  no  suit  at  law  existing  against  any  of  the  *defend- 
ants,  except  James  Kane ;  and  his  counsel  admit  that  his 
name  is  used  in  the  suit  in  this  Court,  pro  forma  merely, 
and  is  willing  to  have  it  struck  out  of  the  record.  The  suit 
at  law  is  a  judgment  against  James  Kane,  for  a  debt  not  in 
dispute,  and  the  plaintiff  is  endeavoring  to  raise  the  debt  by 
execution.  The  object  of  the  suit  here  is  to  set  aside  as 
fraudulent  a  prior  judgment,  which  the  defendants,  as  cred- 
itors of  James  Kane,  have  obtained  against  him.  The  integ- 
rity or  validity  of  that  prior  judgment  is  not  questioned  in 
the  plaintiff's  suit  at  law ;  nor  does  any  proceeding  under 
the  plaintiff's  judgment  at  law  necessarily  disturb  it.  But 
the  hardship  of  the  case  consists  in  this,  that  the  defend- 
ants are  restrained  by  the  plaintiff's  suit  here,  and  the  injunc- 
tion which  he  has  procured,  from  pursuing  their  execution  on 
their  judgment  at  law,  while  he  is  continuing  his  remedy 
there,  and  seeking  advantages,  by  an  intermediate  sale  of  the 
debtor's  property.  If  that  property  be  personal,  he  gains, 
by  the  sale  of  it,  a  direct  advantage  over  his  rival  creditors, 
whom  he  has,  in  the  mean  time,  held  fast  by  process  from 
this  Court.  If  the  real  estate  be  sold,  he  gains  the  legal 
title  under  his  junior  judgment,  and  will  be  enabled  to  take 
possession  of  the  lands,  and  to  enter  upon  the  enjoyment  of 
the  rents  and  profits.  Such  advantages  ought  not  to  be 
o-ained  by  means  of  the  process  of  this  Court.  The  plaintiff 
ought  to  be  content  to  let  the  defendants  have  an  equal  chance 
with  him  at  law,  or  else  to  suspend  his  execution  also,  until 
the  question  of  fraud,  which  has  been  raised  by  the  bill,  and 
denied  by  the  answers,  shall  have  been  decided.  I  have  no 
nesitation,  therefore,  in  putting  the  plaintiff  to  his  immediate 
election,  either  to  stay  his  execution  at  law,  or  to  have  the 
injunction  dissolved. 

But  I  do  not  perceive  the  necessity  or  the  propriety  of 
going  further,  until  the  cause  has  been  brought  to  a  hearing. 
I  see  no  reason  why  the  defendants  should  insist,  also,  upon 
the  dismissal  of  the  bill.  The  plaintiff  is  not  trying  *the  va-  [  *  228  ] 
lidity  or  consideration  of  their  judgment,  by  any  suit  at  law  : 
he  appears  to  me  to  have  a  right  to  continue  his  inquiry  here 
until  the  cause  shall  have  been  brought  to  a  regular  decision. 
In  Barker  v.  Ditmaresque,  (2  Aik.  119.)  Lord  Hardwiclce 
distinguished  that  case  from  one  to  which  the  ordinary  rule 
to  elect  applied,  and  he  allowed  the  plaintiff  to  proceed  at 
law  to  judgment  against  the  administrator  for  the  debt,  and, 
at  the  same  time,  to  proceed  in  chancery  for  the  discovery  and 
account  of  assets.  The  principle  on  which  the  suit  at  law 
and  the  suit  in  equity,  at  the  same  time,  for  the  same  cause, 
is  prohibited,  is  the  "  double  vexation,"  as  it  is  expressed  in 

VOL.  III.  23  177 


<>23  CASES  IN  CHANCERY. 

1S17.  Lord  Bacon's  rules  on  this  subject;  and  by  one  of  Lord 
v^^-s^-^^  Clarendon' 's  rules,  a  suit  pending  at  law  for  the  same  mat 
LIVINGSTON  ter,  was  a  good  plea  in  bar  to  the  suit  in  chancery.  So, 
KANE  m  ^'l°cncr  v-  Reed,  (1  Ball  and  Beatty,  318.)  Lord  Manners, 
in  explaining  the  reason  of  the  rule  on  Ifois  subject,  and  which 
now  requires  an  election  instead  of  a  ptea,  observes,  that  "  it 
would  be  utterly  inconsistent  with  the  ends  of  justice  to 
permit  a  party  to  proceed  in  this  Court,  and  at  law,  at  the 
same  time,  for  the  same  demand;  for  the  jury  may  find 
a  verdict  one  way,  and  the  master  make  a  report  a  different 
way,  which  would  occasion  such  a  clashing  of  jurisdiction  as 
never  could  be  endured."  It  is  quite  apparent,  from  this  ex- 
planation and  history  of  the  rule,  that  the  present  case  is  not 
within  it,  to  the  extent  of  requiring  the  bill  to  be  dismissed 
There  is  no  "  double  vexation"  by  the  continuance  'of  the 
suit  here. 

I  shall  do  no  more,  therefore,  under  the  present  motion, 
than  to  call  upon  the  plaintiff  to  elect  and  agree,  forth- 
with, either  to  stay  his  execution  at  law  during  the  continu- 
ance of  the  injunction,  or  that  the  injunction  be  dissolved. 
The  question  of  costs  upon  this  application,  and  all  other 
questions,  will  be  reserved  until  the  hearing. 

The  following  rule  was  entered : — "  Ordered,  that  the 
plaintiff,  by  his  counsel,  forthwith  elect  and  agree  either  to 
[  *  229  ]  *stay  his  execution  at  law,  in  the  said  petition  mentioned, 
during  the  continuance  of  the  injunction  heretofore  issued  in 
this  cause,  or  that  the  said  injunction  be  dissolved.  And  the 
said  plaintiff,  by  his  counsel,  having  declared  before  the 
chancellor,  that  he  should  not  consent  or  elect  to  stay  the 
execution  at  law :  It  is  thereupon  further  ordered,  that  the 
said  injunction  be  dissolved ;  and  the  question  of  costs  upon 
this  application,  and  all  other  questions,  are  reserved  until 
the  hearing." 
178 


CASES  IN  CHANCERY.  229 

1317. 

CUMBERLAND 

THE  DUKE  OF  CUMBERLAND  and  others  against  COD-  CODRIH'GTOH. 
RINGTON  and  others. 

[Referred  to,  4  Johns.  Ch.  139;  9  Paige  451,  CGI.] 

Where  a  person  takes  a  conveyance  of  land  subject  to  a  mortgage,  cove- 
nanting to  indemnify  the  grantor  against  the  mortgage,  and  having 
paid  off  part  of  the  encumbrance,  dies  intestate,  the  land  is  the  prima- 
ry fund  to  be  resorted  to  for  payment  of  the  residue,  and  the  heir 
cannot  throw  the  charge  upon  the  personal  representatives. 

if  the  purchaser  has  even  rendered  himself  liable,  at  law,  to  the  mort- 
gagee, or  creditor,  for  the  payment  of  the  debt,  this  circumstance  will 
not  be  sufficient  to  change  the  natural  course  of  assets ;  there  must, 
also,  be  proof  of  strong  and  decided  intention  to  subject  the  personal 
estate  to  the  charge. 

By  an  express  direction  in  his  will,  or  by  disposition,  or  language  equiv- 
alent to  an  express  direction,  the  purchaser  may  throw  the  charge 
upon  his  personal  assets. 

if  the  purchaser,  having  subjected  his  personal  estate  to  the  charge,  dies, 
and  the  land  descends  to  his  heir,  who  is,  also,  his  personal  represent- 
ative, although  the  personal  funds  of  the  ancestor,  hi  the  hands  of  the 
heir,  were  liable  for  the  debt,  yet,  on  the  death  of  the  heir,  his  person- 
al assets  are  not  the  primary  fund  for  payment. 

IN  the  beginning  of  the  year  1791,  Sir  William  Pulteney,  December  si. 
for  himself,  and  for  Wm.  Hornby,  and  Patrick  Colquhoun, 
purchased  of  Robert  Morris,  of  Philadelphia,  a  large  tract  of 
land  in  this  state,  called,  in  the  case  made  by  consent  of  par- 
ties, the  "  Genesee  Tract,"  in  which  Sir  William  was  inter- 
ested in  three  fourths ;  but  as  he  and  the  other  purchasers 
*were  aliens,  a  conveyance  was  not  made  to  them.  After  the  [  *  230 
sale,  the  proprietors  of  the  tract  duly  appointed  Charles  Wil- 
liamson, a  Scotchman,  their  agent,  who  removed  to  this  coun- 
try, became  naturalized,  and  procured  from  Morris  and  his 
wife  an  absolute  conveyance  of  the  tract  to  himself,  in  fee. 
Having  thus  obtained  the  legal  title,  Williamson  entered  into 
a  variety  of  extensive  speculations,  both  in  relation  to  the 
Gcncsee  Tract,  and  other  objects,  by  which  he  became  greatly 
involved  in  debt,  and  his  drafts  upon  his  employers,  which 
they  had,  for  several  years,  been  in  the  habit  of  paying,  in- 
creasing greatly  in  amount,  they  refused  any  longer  to  ac- 
cept his  bills,  and  attempted  to  bring  his  agency  to  a  final  set- 
tlement, and  to  obtain  a  division,  and  conveyances  of  the  land 
from  him,  as  they  were,  at  this  time,  enabled  to  hold  real 
estate,  by  virtue  of  an  act  of  the  legislature  of  the  2d  of  April, 
1793.  This  act,  however,  was  limited,  in  its  duration,  to 
three  years,  and  Williamson  refused  to  convey  their  respec- 
tive proportions  to  the  different  proprietors,  except  on  the 
payment,  from  each,  of  very  large  sums  of  money.  To  ob- 
tain a  conveyance,  and  to  prevent  the  land  from  being  sold 

179 


230  CASES  IN  CHANCERY. 

1817  ky  the  creditors  of  Williamson,  on  the  judgments  which  thej 
would  have  obtained  in  the  suits  against  him,  Robert  Troup, 
one  of  the  defendants,  who  was  employed  by  Sir  W.  as  his 
agent  in  this  transaction,  induced  Williamson  to  convey  the 

CODRINGTON         «  TT^       ,.  .  ,  .  .  * 

lands  to  Sir  W.,  for  a  nominal  consideration,  but  upon  cer- 
tain terms,  by  deeds,  which  were  delivered  as  escrows,  and 
persuaded  Williamson's  creditors  to  stay  proceedings  in  their 
suits,  until  it  could  be  known  whether  Sir  W.  would  accede 
to  those  terms,  which  were,  to  pay  Williamson  a  large  sum 
for  his  services  as  agent,  and  to  assume  the  payment  of  his 
debts,  several  of  which  were  secured  by  mortgages  on  the 
premises  conveyed.  The  deed  of  conveyance,  immediately 
after  the  habendum,  contained  the  following  clauses : — "  Sub- 
ject, nevertheless,  to  the  operation  and  charge  of  all  mort- 
gages heretofore  executed  by  the  said  C.  Williamson,  and  now 
[  *  231  ]  existing  as  liens  on  the  said  ^parcels,  or  tracts  of  land,  and 
premises  hereby  granted  and  released,  or  any  parts  or  part 
thereof.  And  upon  the  express  condition,  nevertheless,  that 
the  said  Sir  W.  Pulteney,  his  heirs  and  assigns,  shall  ratify, 
confirm,  and  carry  into  effect,  in  like  manner  as  the  law  would 
require  the  said  C.  Williamson  and  his  heirs  to  do,  in  case 
this  present  grant  and  release  were  not  made,  all  and  each 
of  the  leases,  contracts,  agreements,  or  covenants,  of  whatso- 
ever nature,  at  any  time,  or  times,  heretofore  made,  or  enter- 
ed into,  by  the  said  C.  W.,  with  any  persons,  or  person, 
whomsoever,  of  or  concerning  the  same  parcels  or  tracts  ot 
land  and  premises  hereby  granted  and  released,  or  intended 
to  be  granted  and  released,  or  any  parts  or  part  thereof." 
Sir  W.  accepted  the  terms  which  had  been  proposed,  and 
accordingly,  executed  two  indentures,  bearing  date,  respec 
tively,  the  23d  of  July,  1801,  which  were  received  by  William 
son  as  a  full  compliance  with  the  conditions  of  the  escrow. 

By  one  of  these  indentures,  Sir  W.  covenanted  witt- 
Williamson,  that  he,  Sir  W.,  and  his  heirs,  executors,  arc- 
administrators,  should,  and  would,  from  time  to  time,  and  *t 
all  times  thereafter,  well,  truly,  and  sufficiently  indemm'v. 
and  save  harmless,  the  said  Williamson,  his  heirs,  &c.,  from 
all  actions,  &c.,  by  reason  or  on  account  of  two  bonds  and 
mortgages,  dated,  respectively,  the  1st  of  December,  1796. 
executed  by  Williamson  and  Thomas  Morris  to  Andrew 
Craigie,  each  conditioned  for  the  payment  of  25,000  pound. 
New-York  currency,  with  interest,  on  or  before  the  8th  of 
October,  1806 ;  and  from  another  bond  and  mortgage,  dated 
the  2d  of  September,  1800,  conditioned  for  the  payment  of 
10,000  dollars,  in  three  years  from  the  date,  with  interest, 
executed  by  Williamson  and  Dudley  Walsh  to  George  Wray ; 
and  on  account  of  the  balance  due  on  another  bond  and 
mortgage,  dated  the  13th  of  January,  1796,  executed  by 
180 


CASES  IN  CHANCERY. 

Williamson  to  John  Joy,  for  the  payment  of  30,000  dollars,        1817 
with  interest. 

*A  settlement  having  thus  been  made  with  Williamson,  he 
was  suspended  in  his  agency,  to  which  the  defendant  Troup 
was  duly  appointed,  by  letter  of  attorney,  and  made  several 
payments  on  account  of  the  principal  and  interest  due  on 
the  bonds  and  mortgages  above  mentioned ;  one  of  those  to 
Andrew  Craigic,  having  been  by  him  assigned  to  Bossinger 
Foster,  and  the  other  having  been  purchased  by  Sir  W.,  in 
London,  at  a  discount.  In  May,  1805,  Sir  W.  died  intestate, 
leaving  a  daughter,  Henrietta  Laura  Pulteney,  Countess  of 
Bath,  his  only  child,  who  succeeded  to  all  his  real  property, 
us  heiress  at  law,  and  took  out  administration,  in  Great 
llritain,  on  all  her  father's  personal  estate  in  that  country. 
The  countess  had  previously  married  with  Sir  James  Pul- 
teney,  one  of  the  defendants  in  the  original  bill  in  this  cause, 
but  by  the  marriage  contract,  had  reserved  to  herself  the 
absolute  control  and  disposal  of  the  estates,  real  and  personal, 
which  she  might  acquire,  with  power  to  make  a  will.  Troup 
was  duly  appointed  by  the  countess  her  agent,  and  took  out 
letters  of  administration  on  the  personal  property  of  Sir  W., 
in  this  state.  He  also  proceeded,  with  the  approbation  of 
the  countess,  to  make  payments  on  account  of  the  before- 
mentioned  bonds  and  mortgages,  and  entirely  discharged 
those  executed  to  Joy  and  Wray. 

Bossinger  Foster,  the  assignee  of  one  of  the  bonds  and 
mortgages  to  Craigie,  died  some  time  in  the  year  1805 ;  and 
in  October  of  that  year,  a  correspondence  was  commenced 
by  the  defendant  Mary  Foster,  his  widow  and  administratrix, 
with  Troup,  in  relation  to  the  payment  of  the  interest  due 
on  the  bond  and  mortgage  assigned  to  her  husband,  which 
continued  between  Troup  and  Mrs.  Foster's  agent,  until 
November,  1807,  and  resulted  in  an  engagement  by  Troup, 
in  the  lifetime  of  the  countess,  in  his  character  both  of 
administrator  and  agent,  to  pay  the  principal  and  interest 
due  on  the  bond  and  mortgage,  out  of  the  proceeds  of  the 
Pulteney  estates,  as  fast  as  they  should  come  *to  his  hands,  f  *  5!3 
provided  Mrs.  Foster  would  forbear  to  prosecute  for  the 
recovery  of  the  debt.  With  this  engagement  Mrs.  Foster 
rested  content,  and  did  accordingly  forbear  to  prosecute  :  but 
as  she  seemed  to  be  greatly  in  want  of  the  balance  due  to 
her,  and  the  proceeds  of  the  estate  came  in  but  slowly,  Troup 
conceived  that  he  would  not  be  able  eventually  to  pay  the 
debt  out  of  these  proceeds,  within  the  period  that  might  be 
limited  by  Mrs.  Foster's  exigencies.  Under  this  impression, 
in  October  and  November,  1807,  he  wrote  to  the  countess, 
requesting  permission  to  draw  bills  upon  her ;  but  these,  and 
his  subsequent  communications  on  the  subject,  were  not 

181 


233  CASES  IN  CHANCERY. 

answered  by  the  countess,  or  her  agent  m  England,  as  srtrf 
was,  at  the  time,  in  an  ill  state  of  health,  and  incapable  of 
~?UMBERLAMD  attending  to  business,  and  afterwards  died,  in  July,  1808, 
^ODRINGTON  w'thout  issue,  having  made  her  will,  by  which  she  gave  her 
personal  estate  to  Sir  Thomas  Jones,  (who  was  one  of  the 
defendants  in  the  original  bill,  but  is  since  deceased,)  to  the 
defendant  Codrington,  and  another  person,  in  trust,  and 
appointed  them  her  executors ;  but  the  two  former  only 
undertook  the  execution  of  the  will,  and  her  real  estate 
descended  to  Sir  John  Lowthcr  Johnstonc,  as  her  heir  at  law, 
who  was  plaintiff  in  the  original  bill,  but  is  since  deceased. 

In  August,  1808,  after  the  death  of  the  countess,  and 
before  it  was  known  to  him,  Troup  procured  his  own  notes 
for  30,000  dollars  to  be  discounted  at  one  of  the  banks  in 
the  city  of  New-York,  and  paid  that  amount  on  account  of 
Mrs.  Foster's,  bond  and  mortgage,  and  for  the  payment  of 
the  residue,  drew  a  bill,  for  11,000  pounds  sterling,  upon  the 
countess,  in  favor  of  H.  Waddington,  of  London,  one  of 
the  firm  of  J.  Waddington  and  Co.,  of  Neiv-York.  The  bill 
was  confided  to  J.  Waddington  and  Co.,  to  be  remitted  by 
them  to  H.  Waddington  for  acceptance  and  payment, 
under  an  agreement,  that  when  it  was  paid  in  London,  Mr. 
Troup  should  be  at  liberty  to  draw  on  H.  Waddington  for 
[  *  234  ]  *the  amount.  On  its  arrival  in  London,  the  bill  was  neither 
accepted  nor  paid,  owing  to  a  dispute  between  the  personal  and 
real  representatives  of  the  countess,  the  former  contending 
that  the  balance  due  on  Mrs.  Foster's  bond  and  mortgage 
was  payable  out  of  the  mortgaged  premises ;  and  the  latter, 
that  it  was  a  charge  on  the  personal  assets  of  the  countess. 
The  agency  both  of  the  real  and  personal  estate  was  continued 
in  Mr.  Troup,  by  the  respective  representatives. 

In  consequence  of  the  death  of  Sir  John  Lowthcr  Johm,toi:c, 
the  original  plaintiff,  and  two  of  the  defendants,  after  pub- 
lication had  passed,  and  before  the  cause  was  set  down  for 
hearing,  the  suit  was  abated ;  and  a  bill  of  rcvivor  was  filed 
by  the  Duke  of  Cumberland,  Earl  Manners,  Lord  Allavay, 
and  Masterton  Ure,  the  present  plaintiffs,  who  are  the  devisees 
of  Sir  J.  L.  Johnstone.  Troup,  by  his  answer  to  the  bill  of 
revivor,  admitted  that  he  had  sufficient  assets  to  pay  the 
mortgage  debt,  should  the  Court  decree  it  to  be  paid  out  of 
the  personal  estate. 

Harison  and  Hoffman,  for  the  plaintiffs.  It  cannot  be 
disputed,  but  that  if  the  debt  in  question  had  been  originally 
contracted  by  Sir  W.  P.,  or  the  countess,  the  real  repre- 
sentatives would  have  been  entitled  to  the  relief  which  they 
now  seek,  unless  a  contrary  inference  could  be  deduced  from 
the  will  of  the  countess  ;  but  no  such  inference  is  in  this  case 
182 


CASES  IN  CHANCERY.  234 

pretended.    (QFonbL  Tr.  Eg.  290.)    Nor  is  it  contended,  that        1817. 
they  can  transfer  the  burthen  to  the  personal  representatives,   ^*^,s-^, 
unless  circumstances  can  be  shown  to  warrant  the  inference,  CUMBERLAND 
that  it  was  the  intention  of  the  original  parties  to  make  the  CODRI£GTOS 
debt  their  own.     (2  Fonbl.  Tr.  Eq.  291.)     The  intention  of 
the  party   from  whom  both  the  funds  proceed,  is  the  gov- 
erning principle.     (Pockley  v.  Pockley,  1  Fern.  36.)     If  it 
were  a  debt  of  his  own  contracting,  he  must  manifest  his 
intention   to   exempt  his   personalty,  the    primary  fund  for 
payment :  if  it  were  *the  debt  of  another,  he  must  do  some       [  *  235  ] 
act  evincing  his  design  to  regard  it  as  his  own,  and  disturb 
the  natural  course  of  the  two  species  of  assets ;  otherwise, 
the  heir  who  takes  the  estate,  takes  it  with  the  burthen  to 
which  it  was    subjected.     Upon  these   acknowledged  prin- 
ciples, Courts  of  equity  have  uniformly  proceeded,  or  pro- 
fessed to  proceed ;  and  where  an  estate  has  been  purchased 
subject  to  a  mortgage,  and  the  purchaser   remains  entirely 
passive,  the  land  continues  to  be  charged  with  the  debt ;  but 
neither  the  executor  nor  heir  of  the  purchaser  is  liable  for 
the  satisfaction  of  it.     Such,  however,  is  not  the  present 
case,  for  Sir  W.  and  the  countess  of  Bath  have  not  been 
wholly  passive. 

The  first  circumstance  which  presents  itself,  as  evidence 
of  their  intention  in  relation  to  this  debt,  is  the  covenant  of 
indemnity  executed  by  Sir  W.  to  Williamson ;  a  circum- 
stance, however,  which  is  admitted  not  to  be,  of  itself, 
sufficient  to  shift  the  burthen  from  the  land ;  and  such  has 
been  the  determination  in  a  variety  of  cases.  (Evelyn  v. 
Evelyn,  2  P.  Wms.  591.  Tweddett  v.  Tweddell,  2  Bro.  Ch. 
Cas.  152.)  All  these  cases,  however,  presume  a  volun- 
tary purchase  of  property,  supposed  to  be  equal,  and  more 
than  equal  to  the  debt,  and,  in  England,  producing  rents 
or  income  more  than  adequate  to  the  growing  interest.  In 
this  instance,  Sir  W.  was  compelled  to  assume  the  payment 
of  the  debt,  without  any  calculation  that  the  land  was  an 
adequate  fund  for  the  purpose,  in  order  to  obtain  the  land  ; 
and  it  was  natural  for  him  and  his  agent  to  conclude  that  he 
was  substituted  in  the  place  of  Williamson,  and  was  thence- 
forward to  be  regarded,  not  as  a  surety,  but  as  the  principal 
in  the  transaction.  It  is  not  asserted  that  an  erroneous 
conclusion  as  to  a  legal  point,  is  binding  upon  the  party  ; 
but  it  is  conceived,  that  where  his  situation  is  to  depend 
upon  his  own  intention,  the  way  in  which  he  himself  must 
have  viewed  that  situation,  is  irrefragable  proof  of  his  in- 
tention :  such  was  the  decision  in  Pockley  *v.  Pockley,  [  *  236  ] 
which  has  been  a  leading  case  on  the  subject.  There,  the 
testator,  by  his  will,  considered  the  debt  as  his  own,  and 

133 


236  CASES  IN  CHANCERY. 

having  so  considered  it,  the  law  inferred  that  his  personal 
estate  was  the  proper  fund  for  its  discharge.  That  Sir  Wm, 
CUMBERLANE  did  assume  the  mortgages  mentioned  in  the  condition  of  the 
escrow3  ig  apparent,  from  the  large  payments  which  were 
made  by  his  agent,  without  compulsion,  out  of  his  personal 
estate,  on  account  of  those  debts. 

If  this  case  stood  alone  upon  the  circumstances  which 
took  place  in  the  lifetime  of  Sir  W.,  it  will  be  found  as 
strong  as  that  of  Belvedej-e  v.  .RocA/brt,  (6  />Vo.  P.  C.  520.) 
which,  though  it  may  seem  to  have  been  shaken  by  subse- 
quent decisions,  yet  is  in  perfect  harmony  with  Parsons  v. 
Freeman,  (Amb.  115.  5.  C.  2  jP.  fFwzs.  664.  n.)  where  the 
deed  of  purchase  contained  a  clause,  "  that  the  principal 
money,  with  the  interest  thereof,  from  a  certain  day,  was  to 
be  paid  and  discharged  by  the  purchaser,  out  of  the  consid- 
eration money  in  the  deed  expressed."  Equivalent,  and 
more  than  equivalent,  to  that  clause,  is  Sir  Wm.'s  acceptance 
of  the  escrow,  and,  consequently,  of  the  conditions  on  which 
the  estate  was  to  vest ;  and  this  must  be  deemed  an  express 
agreement  to  make  the  debt  in  question  his  own. 

After  the  death  of  Sir  JF.,  Mr.  Troup,  who  administered 
on  his  personal  property  in  this  country,  fully  discharged  two 
of  the  boids  and  moitgages,  and  paid  the  interest  accruing 
on  jFWer's  mortgage ;  nor  were  any  objections  made  on  the 
part  of  the  countess,  who  allowed  his  accounts  in  which 
these  payments  were  charged.  Nay,  more  ;  in  her  corre- 
spondence with  him,  she  refers  to  future  payments  to  be 
made,  "  according  to  the  arrangement  with  Williamson"  and 
inquires,  if  he  can  furnish  funds  in  America,  to  the  amount, 
or  how  much  must  be  drawn  from  England ;  and  neither  she, 
nor  her  agent,  in  their  correspondence,  intimates  that  the 
[  *  237  ]  land  would  be  resorted  to  as  the  source  *from  whence  the 
debt  was  to  be  satisfied.  Mr.  Troup,  too,  engaged  to  Mrs. 
Foster,  to  discharge  the  debt  in  question  out  of  the  personal 
estate,  as  fast  as  it  came  to  his  hands,  either  in  the  course  of 
his  administration  or  of  his  agency  for  the  countess.  He 
has,  therefore,  plainly  assumed  the  debt  on  her  behalf,  and 
designated  the  very  fund  out  of  which  it  was  to  be  paid.  In 
consequence  of  this  engagement,  he  obtained  forbearance 
from  the  creditor ;  but  the  personal  property  here  was  in- 
sufficient to  meet  the  demand :  he,  therefore,  borrowed 
money  from  the  bank,  and  drew  bills  upon  the  countess — a 
measure  which  he  was  well  authorized  in  taking,  by  the 
knowledge  that  he  had  of  the  intention  of  the  countess 
and  her  father ;  though  it  is  not  pretended  that  it  would  alone 
be  sufficient  to  change  or  affect  the  rights  of  the  parties. 

Upon  the  whole,  they  contended,  that  from  the  acts  of  Sif 
184  " 


CASES  IN  CHANCERY.  .  237 

W.  P.  and  the  Countess  of  Bath,  it  must  be  necessarily        jg|  -( 

inferred,  that  they  meant  to  make  this  mortgage  a  debt  of  <^r~v*^s 

their  own.     If  so,  the  representatives  of  the  real  estate  are  CUMBERLAND 
entitled  to  the  relief  sought  by  the  bill.     (Woods  v.  Hun- 

„•         f        1      O     T7  10rt\  V 

tingford,  3  Ves.  130.) 

T.  A.  Emmet  and  Wefts,  contra.  Had  Sir  Af.  P.,  in- 
stead of  acquiring  an  estate  subject  to  a  mortgage,  himself 
been  the  original  mortgagor,  and  died,  as  he  did,  intestate, 
it  is  not  to  be  doubted  but  that,  according  to  the  law  of 
England,  his  personal  estate,  that  being  the  fund  primarily 
liable  for  the  payment  of  debts,  would  have  been  held 
to  satisfy  the  mortgage  in  ease  of  the  heir.  Nor  is  it  denied 
that  such  is  the  law  of  this  state :  it  has  been  so  long  and 
so  well  settled  in  England,  that  it  must  be  regarded  as 
adopted  by  us,  and  ingrafted  in  our  own  jurisprudence. 
This,  however,  is  obvious,  that  the  rule  is  founded  upon 
principles  foreign  from  the  nature  and  genius  of  our  govern- 
ment. Its  origin  may  readily  be  traced  to  that  policy,  which, 
by  giving  the  preeminence  *to  real  property,  seeks  to  cherish  [  *  238  ] 
the  landed  aristocracy  of  the  country — a  policy  natural  and 
proper  under  a  system  of  government  like  that  of  Great 
/Britain,  but  directly  hostile  to  the  spirit  of  our  own.  These 
considerations,  though  they  will  not,  perhaps,  authorize  the 
Court  to  break  through  what  has  hitherto  been  considered 
the  law  both  of  this  country  and  of  England,  cannot  fail  to 
manifest  the  impropriety  of  extending  a  rule,  which  owes  its 
observance  with  us  to  the  mere  weight  of  authority,  and  not 
to  the  intrinsic  principles  of  natural  justice,  or  the  peculiar 
nature  of  our  political  institutions.  The  Court  will,  there- 
fore, not  be  disposed  to  extend  its  favor  to  the  heir  at  law, 
any  further  than  it  will  be  compelled  by  decisions  which  it 
may  deem  obligatory. 

As  the  mortgage  in  question  was  not  originally  executed 
by  Sir  W.  to  secure  a  debt  of  his  own,  the  case  does  not 
fall  within  the  rule  referred  ta,  which  only  applies  to  the  debts 
of  the  ancestor  himself,  from  whom  both  the  funds  are  derived. 
The  rule  in  England,  applicable  to  cases  like  the  present,  is, 
that  the  personal  estate  of  a  stranger  to  an  encumbrance  on 
the  property  which  he  acquires  subject  to  that  encumbrance, 
is  not  liable  for  its  exoneration,  unless  he  has  adopted  the 
debt,  and  made  it  his  own  ;  "  the  same,"  says  Lord  Ahanley, 
in  Woods  v.  Huntingford ,  (3  Ves.  131.)  "as  if  he  was  the 
original  mortgagor."  This  adoption  must  be  certain  and 
anequivocal ;  for,  as  Lord  Alvanhy  observes  in  the  same 
case,  the  Court  has  been  extremely  "  anxious  not  to  make 
that  inference,  unless  where  it  is  perfectly  clear  and  obvious." 
If  so  much  caution  be  expressed  in  an  English  tribunal, 

VOL.  III.  24  185 


CASES  IN  CHANCERY. 

1817.       where  the  doctrine  of  exoneration  is  avowedly  founded  on 

V^X-N^— ^^  the  principle,  that  "  in  questions  between  heir  and  executor, 

CUMBERLAND  the  heir  and  real  estate  are  favored,"  per  Lord  Hardivicke 

CODRINGTON.  m  Parsons  v.  Freeman,  (Amb.    115.)  how  much  should  that 

I  *  239  ]       caution  be  increased,  in  the  tribunals  of  a  country,  the  *laws 

and  political  institutions  of  which,  so  far  from  cherishing  this 

principle,  are  directly  opposed  to  it ! 

In  this  cause,  two  questions  present  themselves :  1 .  Did 
Sir  W.  P.  make  the  mortgage  debt  in  controversy  his  own 
personal  debt?  2.  Was  this  done  by  the  Countess  of  Bath. 
after  his  decease  ?  Unless  the  one  or  the  other  of  them  did 
it,  the  relief  prayed  for  cannot  be  obtained.  A  purchaser  of 
a  mortgaged  estate  may.  undoubtedly,  make  himself,  or  his 
personal  funds,  liable  for  payment ;  but  this  is  a  question  of 
intention,  and,  according  to  the  emphatic  language  of  Lord 
Thurlow,  there  ought  to  be  "  a  demonstration  of  such  inten- 
tion." (Billinghurst  v.  Walker,  2  Bro.  Ch.  Cas.  608.)  It 
may  not  be  easy  to  deduce,  from  the  variety  of  decisions  on 
the  subject,  a  fixed,  invariable  criterion  of  intention;  yet  it 
is  suggested,  with  confidence,  that  to  constitute  an  adoption, 
the  purchaser  must  render  himself  responsible,  at  law,  to  the 
mortgagee,  to  pay  the  debt ;  or  must  expressly  recognize  it 
in  his  will,  treating  it  as  his  own,  and  directing  its  payment, 
in  like  manner  with  his  other  debts.  The  covenant  of  in- 
demnity executed  by  Sir  W.,  on  which,  taken  singly,  the  op- 
posite counsel  do  not  seem  much  to  rely,  connected  with 
auxiliary  circumstances,  has  been  urged  by  them  as  proof 
of  an  adoption ;  but  their  conclusions  are  not  borne  out  by 
the  facts,  and  the  facts  show  that  the  real  property  was  con- 
sidered, by  Sir  W.  and  his  daughter,  as'  the  primary  fund 
out  of  which  payments  were  to  be  made,  and  that,  subsequent 
to  the  conveyance  from  Williamson,  during  all  their  lifetime, 
whatever  payments  were  made  on  account  of  the  mortgages, 
were  made,  it  is  true,  out  of  the  personal  estate,  but  that 
personal  estate  consisted  of  the  avails  of  the  land. 

The  very  form  of  the  covenant  of  indemnity  argues  strong- 
ly, that  it  was  not  the  intention  of  Sir  W.  to  make  the  mort- 
gage debts  his  own.  Had  he  intended  more,  less  equivocal 
[  *  240  ]  marks  of  his  intention  would  have  been  exhibited.  *Such  a 
covenant  does  not  amount  to  an  assumption  of  the  debt ; 
the  whole  current  of  authorities  shows,  that  even  an  express 
covenant  with  the  vendor,  by  a  person  purchasing  land  sub- 
ject to  a  mortgage,  to  pay  off  the  encumbrance,  is  not  effect- 
ual to  charge  his  personalty ;  and  there  are  many  cases  to 
prove,  that  even  a  covenant  subsequently  entered  into  with 
the  mortgagee  or  his  assignee,  can  have  no  higher  efficacy 
(Evelyn  v.  Evelyn,  2  P.  Wins.  664.  and  note.  ibid.  Bil 
Kntrhurst  \.  Walker,  2  Bro.  Ch.  Cas.  604.  Tankervilh  \ 
186 


CASES  IN  CHANCERY.  240 

Faivcet,  Id.  57.      Clinton  v.  Hooper,  3  Bro.  Ch.    Cos.  211.         1817 
Butler  v.  Butler,  5    Vesey,  534.)     Butler  v.  Butler  wiil  oe  ^^-^—.^.^ 
found  to  be  a  very  strong  case  to  this  point.  CUMBERLAND 

The  authorities  are  conclusive  to  show  that  neither  pay-  COOKING-FOX. 
ment  of  a  part  of  the  principal,  or  of  the  interest,  is  an 
adoption  of  the  debt,  notwithstanding  a  covenant  to  pay ; 
whereas  here,  there  is  only  a  covenant  of  indemnity.  In 
Perhyns  v.  Bayntun,  (2  P.  Wms.  664.  n.)  there  was  a  pay- 
ment of  part  of  the  principal.  In  Shafto  v.  Shafto,  (Ibid.} 
the  interest  was  paid.  In  Bittinghurst  v.  Walker,  (2  Bro. 
Ch  Cos.  604.)  a  case  precisely  resembling  the  present,  one 
debt  was  paid  off,  and  the  interest  of  the  other.  Matthew- 
son  v.  Hardiviclce  (2  P.  Wms.  665.  n.)  is  still  stronger,  for 
the  devisee  of  lands  charged  with  debts  and  legacies,  paid 
them  all  off,  except  a  legacy  for  which  he  gave  his  note ;  yet 
Lord  Ahanley  held,  that  this  only  made  the  personal  estate 
a  collateral  fund.  So,  again,  in  Basset  v.  Percival,  (2  P. 
Wms.  664.  n.)  where  the  heirs  gave  a  bond  for  the  debt  of 
the  testator,  Lord  Kenyon,  master  of  the  rolls,  determined 
that  the  real  estate  was  the  original  debtor.  Yet,  in  the  two 
last  cases,  the  devisee  in  the  one,  and  the  heirs  in  the  other, 
had  made  themselves  personally  responsible  at  law. 

Pockley  v.  Pockley,  (1  Vern.  36.)  cited  on  the  other  side, 
is  inapplicable  to  the  present  question,  for  there  the  testator, 
by  will,  expressly  appointed  the  debt  to  be  paid  *out  of  his  f  *2 
personal  estate  ;  and  that  was  the  ground  of  the  decision. 
The  owner  of  real  estate  subject  to  a  mortgage,  may  satisfy 
it,  either  from  his  personal  property,  or  out  of  the  real  estate 
itself, 'from  the  rents  and  profits,  or  by  sales.  Being  the 
owner  of  both  funds,  he  can,  during  his  lifetime,  apply 
which  he  pleases  to  the  discharge  of  the  debt,  and  has  power 
to  direct  which  should,  after  his  death,  be  appropriated  to  that 
purpose.  Had  the  testator,  in  his  will,  said  nothing  about 
the  mortgage,  it  is  clear  that  the  heir  must  have  taken  the 
land  cum  onere,  and  that  the  personal  estate  could  never 
have  been  applied  to  his  relief.  But  he  chose  that  the  suc- 
cessor to  his  real  property  should  have  it  free  from  the  debt 
with  which  it  was  charged,  and  he,  therefore,  directed  his 
executors  to  do  what  he  might  himself  have  done,  that  is, 
to  pay  off  the  encumbrance  from  his  personal  estate.  In 
Parsons  v.  Freeman,  (Ambl.  115.)  referred  to  by  the  opposite 
counsel,  although  it  is  very  open  to  criticism,  yet  Lord  Hard- 
tvicke  places  his  decision  on  the  ground  that  the  purchaser 
had  covenanted  to  pay  the  mortgage  ;  he  had  not  merely 
covenanted  to  indemnify  ;  it  is,  therefore,  not  analogous;  be- 
sides, it  will  not  be  easy  to  reconcile  it  with  prior  and  subse- 
quent cases,  in  all  of  which, — and  some  of  them,  too,  were  de- 
cisions of  Lord  Hardivicke  h'mself, — although  a  covenant  had 

187 


•.Ml  CASES  IN  CHANCERY. 

1817        keen  given  to  pay  off  the  encumbrance,-  it  was  yet  he.id  thai 

^r~~^~+^  the  land  was  the  primary  fund,  and  that  the  purchaser  had 

CUMBERLAND  not  made  the  debt  his  own.     (Evelyn  v.  Evelyn,  2  P.  Wins. 

659.    Leman  v.  Newnham,  1  Vesey,  51 .    Lacam  v.  Merlins,  Id. 

*'  312.     Lewis  v.  Nangle,  Ambl  150.     A  C.  2  P.  Wms.  664. 

n.    Forrester  v.  Leigh,  Ambl.  175.    S.  C.  2  P.  Wms.  664.  n. 

Ancaster  v.  Mayer,  1  5ro.  CA.  Cos.  454.    Shafto  v.  Shafto. 

Basset  v.   PercivaL     Matthewson  v.  Hardwicke,  2  P.  Wfos. 

664.  n.  Billinghurst  v.  fFa/frer,  2  J5ro.  Cft.  Cos.  604.     .Bwf- 

/«r  v.  Butler,  5  Vesty,  534.      Tweddell  v.    Tweddell,  2  f?ro. 

CVL  COT.  101.) 

[  *  242  ]  The  case  of  Belvedere  v.  Rochfort,  (6  #ro.  P.  C.  520.  *2d 

ed.  by  Tomlins,  vol.  5.  p.  299.)  so  far  from  militating  against 
the  principles  contended  for  on  the  part  of  the  defendants, 
assumes  them  throughout  as  settled  law,  and  proceeds  on  the 
ground  that  a  legal  liability  to  pay  the  mortgage  debt  had 
been  created  by  the  purchaser :  it  is  in  the  application  of 
those  principles  that  its  correctness  may  be  questioned.  But 
that  case,  were  it  uncontradicted  by  later  decisions,  ought 
rather  to  be  regarded  as  standing  on  its  own  particular  cir- 
cumstances, than  as  forming  a  general  rule.  It  presented  an 
instance  of  persevering  oppression  and  injustice,  at  which 
our  feelings  revolt,  and  was  peculiarly  calculated  to  awaken, 
in  the  minds  of  those  who  determined  it,  sympathies  too 
powerful  to  be  repressed,  by  a  cold  and  rigid  rule  of  law,  had 
such  stood  in  the  way.  One  can  scarcely  imagine  a  case 
abounding  with  stronger  temptations  to  pass  the  limits  of 
strict  judicial  right,  in  order  to  attain  substantial  justice. 
When  a  case  precisely  similar  again  occurs,  which,  it  is  to  be 
hoped,  for  the  honor  of  our  nature,  never  will,  then  it  may 
be  resorted  to  as  a  precedent.  It  is  sufficient,  for  the  present 
purpose,  to  say,  that  if  there  be  any  thing  in  that  decision 
hostile  to  the  arguments  advanced  for  the  plaintiffs,  it  was 
expressly  overruled  by  Lord  Thurlow,  in  Tweddell  v.  Twed- 
dell, which  has  ever  since  been  considered,  in  England,  the 
standard  authority  on  the  subject,  and  is  uniformly  recognized 
as  such  by  all  the  subsequent  decisions.  (Billinghurst  v. 
Walker,  2  Bro.  Ch.  Cos.  604.  Woods  v.  Hunting  ford,  3 
F'esey,  128.  Butler  v.  Butler,  5  Vesey,  534.) 

If  there  were  no  act  on  the  part  of  Sir  W.  which  amount- 
ed to  an  adoption  of  the  debt,  still  less  has  the  countess  indi- 
cated that  intention.  The  proceedings  of  Mr.  Troup,  in 
paying  off  the  debts  from  the  money  arising  from  sales  of 
the  land,  were,  no  doubt,  approved  of  by  her,  for  such  had 
been  the  course  sanctioned  by  her  father,  and  which  she  had 
intimated  her  design  to  pursue.  This  was  no  evidence  of  a 
[  *  243  ]  determination  to  resort  to  her  *personal  fund,  for  the  discharge 
of  the  mortgage.  She  had  succeeded  alike  to  her  father's 
188 


CASES  IN  CHANCERY.  21' 

real  and  personal  property,  and  might  appropriate  which  she        1817. 
pleased  to  the  purpose.     As  to  the    payments  which  •  have  \^*^/-~ *^ 
been  made,  they  cannot  be  recalled,  and  so  far  the  heir  is  en-  CUMBERLANE 
titled  to  the  benefit  of  them  ;  but  they  confer  no  right  to  call  CODKIN'CTOK 
for  a  continuance  of  them,  or  an  extinguishment  of  the  bal- 
ance out  of  the  personal  estate.     This  point  is  established  by 
the  cases  already  referred  to.     The  correspondence  between 
the  countess  and  her  agent  certainly  denotes  no  intention  to 
assume  any  liability ;    or,  if  it  can  be  so  construed,  it  was 
founded  on  a  misapprehension  of  Sir  W?s  engagement,  and, 
having  never  been  carried  into  effect,  can  in  no  way  vary  the 
rights  of  the  present  parties. 

The  engagement  by  Mr.  Troup  to  Mrs.  Foster,  to  pay  the 
principal  and  interest  of  the  bond  and  mortgage  which  she 
held,  out  of  the  proceeds  of  the  Pulteney  estates,  as  fast  as 
they  should  come  to  his  hands,  on  condition  of  forbearance 
to  prosecute,  has  been  adduced  as  evidence  of  adoption.  If 
this  agreement  were,  in  other  respects,  valid,  still  it  is  too 
vague  and  uncertain  to  be  operative.  It  neither  appears  how, 
or  for  what  time,  Mrs.  Foster  was  to  forbear  to  prosecute. 
But  the  engagement  is  substantially  bad.  There  is  no  ev- 
idence that  Mr.  Troup  had  authority  to  render  the  countess 
personally  liable.  He  had  no  power  as  agent ;  and  as  ad- 
ministrator, he  could  not  subject  the  personal  estate  in  his 
hands  to  the  payment  of  a  debt  for  which  the  intestate  had 
never  made  himself  personally  responsible.  Unless  this  was 
originally  the  debt  of  Sir  fF.,  no  engagement  by  Mr.  Troup, 
as  his  administrator,  could  have  any  effect ;  and  that  it  was 
not  his  debt  has  already  been  shown.  Supposing  Mr.  Troup 
to  have  had  authority  to  make  the  engagement,  as  agent  for 
the  countess,  it  was  then  a  promise  that  she  should  pay  the 
debt  of  another,  for  which  a  certain  real  estate  was  pledged 
as  collateral  security.  To  make  it  obligatory  on  the  principal, 
*a  precise  and  specific  agreement  in  writing  became  neces-  [  *  244  j 
sary,  which  should  distinctly  express  the  terms  of  the  contract, 
and  the  consideration  on  which  it  was  founded.  (JVain  v. 
Walters,  5  East's  Hep.  10.  Sears  v.  Brink,  3  Johns.  Rep. 
214.)  Besides,  no  contract,  however  formal,  founded  upon 
forbearance  to  prosecute,  could  be  binding  on  the  countess, 
unless,  as  the  heiress  of  Sir  W.,  she  had  been  liable  for  the 
payment  of  the  debt,  at  law.  To  make  the  promise  of  an 
heir  good,  in  consideration  of  forbearance,  the  heir  must  be 
liable  at  law  to  pay  the  debt.  {Barber  v.  Fox,  2  Sound.  136.) 
Hence,  whether  Mr.  Troup  be  regarded  as  agent  or  admin- 
istrator, he  had  no  power  to  make  the  contract ;  or,  if  he  had, 
that  power  has  not  been  legally  executed. 

In  respect  of  the  money  borrowed,  and  the  bills  drawn  by 
Mr.  Troup,  those  offered  no  indication  of  an  intention  in  the 

189 


244  CASES  IN  CHANCERY. 

1817.       countess  to  charge  herself  with    the  debt.     The   right  to 

v^^-^-^^  make  the  loan  is  not  now  in  controversy ;  and  althc  ugh  the 

CUMBERLAND  drawing  the  bill  might  well  be  justified  by  the  high  confidence 

CODKINGTON    deservedly  reposed  in  Mr.  Troup,  by  his  principal,  yet  it  was, 

strictly  and  legally,  an  unauthorized  act,  as  is  evident  from 

his  own  letters  to  the  countess  and  her  agent  in  England; 

and  the  cautious  and  guarded  manner  in  which  he  proceeded, 

instead  of  selling  the  bill,  and  at  once  receiving  the  amount, 

shows  that  he  himself  viewed  it  in  no  other  light  than  as  an 

experiment.     The  act  of  aa  agent  wholly  unauthorized,  like 

this,  can  impose  no  responsibility  on  the  principal. 

There  is  one  general  answer  which  may  be  given  to  the 
various  acts,  whether  taken  individually  or  collectively,  that 
have  been  urged  as  proofs  of  adoption,  and  which,  if  the 
principle  contended  for,  on  the  part  of  the  defendants,  be 
correct,  is  decisive  of  the  question.  It  is  this,  that  those 
acts  do  not  constitute  an  adoption  of  the  mortgage  debt, 
either  by  Sir  W.  or  the  countess,  because  they  gave  no  right 
[  *  245  J  of  action  at  law  against  either,  and  because  Sir  W.,  *who 
died  intestate,  could  not,  by  will,  have  recognized  and  di- 
rected the  payment  of  it ;  and  this  could  not  have  been  done 
by  the  countess,  whose  will,  executed  before  the  death  of 
her  father,  is  necessarily  silent  on  the  subject.  To  constitute 
an  adoption,  there  must  have  been  a  direct  liability  at  law  to 
pay  the  debt  to  the  mortgagee  or  the  holder  of  the  mortgage. 
This  principle  is  distinctly  laid  down  by  Lord  Thurloiv,  in 
Tweddell  v.  Tweddell,  and  was  the  foundation  of  his  decision. 
"  It  is  a  clear  rule,"  says  he,  "  that  the  personal  estate  is  never 
charged  in  equity,  when  it  is  not  at  law ;  and  if  not  charge- 
able at  law,  there  is  no  principle  or  case  in  this  Court  to 
warrant  its  being  chargeable  in  equity,  contrary  to  the  order 
of  the  law."  It  is  this  legal  liability  that  alone  gives  a  Court 
of  equity  the  right  of  marshalling  assets.  "  The  rule  of 
marshalling  assets,"  says  his  lordship,  in  the  same  case,  "  is, 
that  it  must  be  a  debt  affecting  both  the  real  and  personal 
estate."  If  the  personal  estate  were  not  liable  at  law,  how 
can  a  Court  of  equity  throw  a  charge  upon  it  ?  Whence  is 
such  a  power  derived  ?  Unless  there  was  a  liability  at  law. 
the  debt  is  clearly  not  the  debt  of  the  person  owing  the 
estate,  but  of  another ;  and  the  statute  of  frauds  declares 
that  no  man  shall  be  answerable  for  the  debt  of  another, 
unless  by  an  agreement  or  note  in  writing,  and  duly  signed. 
How,  then,  can  a  Court  of  equity,  where  no  fraud  is  pre- 
tended, burden  one  man  with  the  debt  of  another,  when  he 
has  contracted  no  legal  obligation,  executed  no  agreement, 
note,  or  memorandum  in  writing,  in  defiance  of  the  statute 
— upon  uncertain,  vague,  and  equivocal  acts,  obnoxious  to 
misconstruction  and  misrepresentation,  and  precisely  those 
190 


CASES  IN  CHANCERY.  213 

jvhich  the  statute   was  designed  to  invalidate?     The  rule        1817. 
contended  for  is  a  safe  and  salutary  one  ;  it  tends  to  that  v^x~s/-«.^> 
certainty  which  is   the  great  object  of  law,  and  affords  a  CUMBERLAND 
definite  guide  to  ascertain  the  intention  of  a  party.     Many  CoDR1NKGTOX 
of  the  cases  cited  show  that  even  a  legal  liability  to  pay  the 
debt  of  another,  will  not,  of  itself,  make  it  *the  party's  own,       [  *  246  ] 
and  subject  his  personal  estate  to  the  payment  of  it,  in  the 
first  instance,  unless  it  was  coupled  with  an  intention,  that 
such  should  be  the  consequence :  yet  it  is  evident,  that  if 
that  intention  cannot  exist  without  the  liability,  there  is,  at 
least,  one  ingredient  which  becomes  indispensable  to  form  an 
adoption ;  and   thus  we  obtain  a  standard  to  ascertain  the 
intention,  which  otherwise  would  be  left  in  utter  uncertainty, 
;md  dependent  on  no  one  fixed  or  settled  principle  whatever. 
The   necessity  of  a  legal  liability  is,   in  pursuance  of  the 
doctrine  in  Tweddett  v.  Twedddt,  recognized  in  the  subse- 
quent cases.     ( Woods  v.  Huntingford,  3   Ves.  127.     Butler 
v.  Butler,  5  Ves.  539.      Waring*.  Ward,  1  Vcs.  332.     The 
Earl  of  Oxford  v.  Lord  Rodney,  14  Ves.  417.) 

Harison  and  Hoffman,  in  reply.  The  counsel  for  the 
defendants,  admitting  the  rule  of  law,  both  in  England  and 
this  country,  to  be,  that  the  personal  estate  is  the  primary 
fund  for  payment  of  debts,  yet,  by  attributing  that  rule  to  a 
disposition  to  cherish  a  landed  aristocracy,  and  by  holding  it 
up  as  inconsistent  with  the  intrinsic  principles  of  natural 
justice  and  the  spirit  of  our  political  institutions,  have  en- 
deavored to  induce  the  Court  to  view  the  principle  with  a 
jealous  eye,  and  to  extend  it  no  farther  than  it  might  feel 
itself  bound  by  decisions  which  it  considered  as  obligatory. 
In  reply  to  these  observations,  it  may  be  answered,  that  the 
principle  does  not  owe  its  origin  to  the  cause  assigned,  for  it 
applies  to  land  in  gavelkind,  as  well  as  to  other  species  of 
real  property.  It  formed  part  of  the  law  of  England,  on  the 
19th  of  April,  1775,  and  consequently  remained  a  part  of 
the  law  of  this  state.  It  has  been  well  settled,  by  a  series 
of  decisions  in  England;  and  the  decisions  of  the  English 
Courts,  until  the  period  of  our  revolution,  upon  every  Dart 
of  the  law  applicable  to  our  situation,  became  as  binding 
upon  us  as  upon  those  Courts  themselves.  *But  their  sub-  *  24**  j 
sequent  decisions  are  not,  intrinsically,  of  any  binding 
authority.  If  they  are  wholly  independent  of,  or  vary  from, 
anterior  decisions ;  if  founded  upon  statutes  which  we  do 
not  acknowledge,  or  which  differ  from  our  own, — they  are  not 
entitled  to  the  slightest  consideration.  Our  Courts  are  not 
to  follow  them  through  all  their  turns  and  windings,  but 
must  adhere  to  the  legal  maxims  in  existence  whe  i  our 
revolution  took  place  ;  and  the  only  use  that  can  properly 

191 


247  CASES  IN  CHANCERY. 

1817.       ke  m&de  of  late  adjudications,  is  to  admit  and  follow  thorn, 

s^rf^-x"-^/  when   they  are  the    deductions   of  right   reason  from  pre- 

CuMBERLAM)  established  principles. 

CODKINGTON  Had  the  mortgage  in  question  been  originally  the  debt  ol 
Sir  W.  or  the  Countess  of  Bath,  it  follows,  of  course,  that  the 
Court  would  direct  it  to  be  paid  out  of  their  personal  estate ; 
but  it  is  distinctly  admitted,  that  it  was  not,  originally,  the  debt 
of  either  of  them,  and  that,  in  consequence  of  certain  artificial 
reasoning,  so  subtle  as  almost  to  escape  the  notice  of  the 
understanding,  a  distinction  has  prevailed  between  a  debt 
of  that  description  and  one  which  the  party  himself  created. 
That  the  heir  or  devisee  of  real  estate  charged  with  a  debt 
of  the  former  kind,  may  have  the  aid  of  the  personal  property 
for  his  exoneration,  it  is  necessary  that  what  was  not  the 
child  of  the  party  by  nature,  and  at  its  birth,  should  become 
so  by  adoption.  In  other  wordsj  he  should  manifest  an  in 
tention  to  make  the  debt  his  own  ;  and  such  is  the  language 
of  Lord  Thurloiv,  in  2  Bro.  Ch.  Cos.  60S.  The  counsel  for 
the  defendants  do  not,  indeed,  openly  deny  this  doctrine ; 
but  then  they  contend  for  some  invariable  criterion  of  in- 
tention, and  have  taken  upon  themselves  to  fix  that  criterion. 
Had  a  rule  existed  like  that  which  they  lay  down,  it  is  truly 
extraordinary  that  those  very  accurate  writers,  Fonblanque, 
and  Coxe,  should  not  have  known  it.  They  say,  that  the 
purchaser  should  appear  to  have  intended  to  make  the  debt 
his  own,  and  they  mention  certain  circumstances  as  not  alone 

[  *  248  ]  sufficient  to  manifest  such  intention,  but  they  *no  where 
assert  that  the  infallible  criterion  of  intention  was  to  be 
sought  only  in  the  circumstances  to  which  the  counsel  for 
the  defendants  have  referred. 

Why  should  those  circumstances  exclude  all  other  evidence 
of  intention  ?  But  unless  they  do,  the  rule  contended  for  on 
the  opposite  side  must  be  too  narrow,  and  is  too  weak  a 
foundation  to  support  the  structure  that  has  been  raised  upon 
it.  Let  us  suppose  that  the  purchaser,  having  a  sum  of 
money  in  the  hands  of  his  steward,  should  give  him  a  precise 
order  to  discharge  the  mortgage  with  it;  can  it  be  doubled 
that,  if  the  purchaser  were  to  die  suddenly  after  giving  the 
order,  this  would  be  a  sufficient  demonstration  of  his  intention 
to  make  the  debt  his  own,  and  to  pay  it  out  of  the  personal 
estate  ?  Yet  the  creditor  might  be  no  party  to  the  order,  ami 
consequently  have  acquired  no  other  right  of  action  than 
what  he  previously  possessed,  that  is,  the  right  of  suing  by 
actionof  ejectment,  or  by  bill  in  equity.  Again;  letussuppose 
that  the  purchaser  should  execute  a  deed  to  a  younger  son, 
or  to  a  collateral  relation,  reciting  that  he  had  made  the  pur- 
chase subject  to  a  mortgage,  which,  nevertheless,  he  considered 
as  his  own  debt,  and  meant  to  discharge  it  out  of  his  personal 
19'2 


CASES  IN  CHANCERY.  24b 

estate;  can  there  be  a  doubt  of  this  being  a  sufficient  dem-        1817. 
onstration  to  adopt  the  debt,  although  there  was  no  covenant 
with  the  creditor  to  pay  the  money,  or  with  the  grantee  to 
disencumber  the  property  ?     Certainly,  these  acts  would  be  CODRINGTOM. 
far  more  clear  and  decisive  than  any  thing  in  Parsons  v. 
Freeman,  or  Lord  Belvedere  v.  Rochfort ;  yet  they  are  acts 
falling  within  neither  branch  of  the   rule  proposed  by  the 
opposite  counsel. 

So  far  from  recognizing  the  doctrine  of  an  invariable  test, 
the  master  of  the  rolls,  in  Woods  v.  Huntingford,  (3  Ves.  132.) 
speaking  on  this  subject,  says,  "  It  is  very  unpleasant  for  a 
judge,  where  an  inference  is  to  be  drawn  from  equivocal 
acts,  and  the  facts  upon  which  the  decision  turns  are  distin- 
guished by  such  nice  lines."  And  after  ^mentioning  some  [  *  249  ] 
of  the  particular  circumstances  of  the  case,  he  adds,  "  I 
cannot  collect  that  Lord  Thurlow  said,  a  man  cannot  make 
a.  debt  his  own  without  an  express  declaration."  Hence  it 
appears,  that  if  there  be  no  express  declaration,  the  intention 
to  adopt  may  be  inferred,  if  a  fair  examination  of  circum- 
stances will  justify  the  inference. 

It  is  true,  that  a  mere  covenant  or  bond  of  indemnity,  ex- 
ecuted by  the  purchaser  to  the  original  mortgagor,  has  been 
held,  whimsically  enough,  not  to  be,  in  itself,  a  sufficient  in- 
dication of  intention  to  adopt  the  debt ;  whimsically,  because, 
in  reality,  where  the  purchaser  executes  such  an  instrument, 
ho  makes  his  personal  estate,  though  circuitously,  yet  in  every 
Court,  liable  for  the  debt.  It  is  not  necessary  that  the  real 
estate  should  be  at  all  resorted  to.  A  recovery  being  had 
against  the  original  debtor,  he  can  immediately  recover  over 
from  the  purchaser,  who  must  pay  the  amount,  without  refer- 
ence to  the  value  of  the  mortgaged  premises.  If,  then,  this 
were  a  new  point,  it  would  be  most  consonant  to  reason  to 
hold  that  a  bond  or  covenant  of  indemnity  was  itself  an  adop- 
tion ;  and  though,  from  the  weight  of  authorities,  this  circum- 
stance cannot  alone  be  relied  upon  as  evidence  of  intention, 
yet  it  may  well  be  used  to  fortify  others  of  greater  impor- 
tance ;  and  Lord  Alvanhy,  in  Butler  v.  Butler,  (5  Ves.  538.) 
intimates,  that  "  if  it  was  a  new  case,  and  he  was  called  upon 
to  decide  the  point  for  the  first  time,  he  might  have  been  of 
another  opinion."  The  facts  in  the  present  case,  although 
some  of  them,  singly,  may  possess  little  weight,  yet  when 
taken  collectively,  they  are  sufficient  to  carry  conviction. 
Juncta  valent.  Thus  Lord  Cowper,  in  Flowyer  v.  Livings- 
ton, (1  -P.  Wms.  272.)  observes,  "  that  where  several  circum- 
stances concurred,  which,  though  each  of  them  singly  might 
not  be  of  force  to  bar  the  redemption,  yet  all  of  them,  jointly 
together,  were  strong  enough  to  prevail  over  it." 

*As  to  the  several  cases  anterior  to  our  revolution,  relating        [*250  ] 

VOL  III.  25  193 


250  CASES  IN  CHANCERY. 


1817  *°  ^is  subject,  none  of  them  affect  or  overrule  the  decision 
^r-^~-+*_s  of  Lo»"d  flardivicke  in  Parsons  v.  Freeman,  which  has  been 
CUMBKRLAND  so  much  criticised  by  the  opposite  counsel,  and  which  if  it 
CODRIWGTON  be  law,  it  is  hardly  possible  to  say,  that  even  upon  the  origi- 
nal agreement,  Sir  W.  F.'s  personal  estate  did  not  become 
the  primary  fund  for  the  payment  of  this  debt:  that  case 
shows,  too,  that  Lord  Hardwicke  considered  neither  a  liability 
at  law,  nor  a  declaration  by  will,  as  essential  to  the  demonstra- 
tion of  the  purchaser's  intention.  As  to  the  decisions  subse- 
quent to  the  year  1775,  it  is  sufficient  to  say,  that  if  they 
vary  from  the  law  as  previously  established,  they  are  of  no 
authority.  Belvedere  v.  Rochfort  was  a  decision  before  our 
revolution,  made  in  the  last  resort,  by  the  highest  tribunal  in 
the  British  empire,  and  must  be  regarded  as  law  in  this  coun- 
try. It  is  true  that  Lord  Thurlow  has  expressed  a  dissatis- 
faction with  it,  and  has  endeavored,  as  far  as  he  could,  to  over- 
rule it.  But  it  is  difficult  to  perceive  how  his  lordship,  sitting 
as  judge  in  an  inferior  tribunal,  could  overrule  the  decision 
of  a  superior  Court.  The  case  before  the  Court  contains  at 
least  as  strong,  if  not  stronger  circumstances,  demonstrating 
the  intention  to  adopt  the  debt,  than  any  in  that  case. 

It  is  a  known  rule,  which  has  a  bearing  upon  the  question, 
that  where  the  real  estate  has  once  sustained  the  charge,  it  is 
not  to  be  a  second  time  burthened.  (1  Salic.  153.  1  P. 
Wms.  518.)  The  real  estate  in  this  case  has  borne  the 
charge  ;  for  it  is  from  the  proceeds  of  it  that  payments  have 
been  made.  All  the  reasoning  of  the  opposite  counsel, 
founded  upon  the  statute  of  frauds,  is  inapplicable  and  falla- 
cious. It  may  have  been  introduced  ad  captandum,  but  can- 
not seriously  be  relied  upon. 

December  31.        The  cause  having  stood  over  for  consideration,  the  follow- 
ing opinion  was,  this  day,  delivered  by  the  Court. 

[  *  251  ]  *THE  CHANCELLOR.     The  question   in  this  case,  between 

the  heir  at  law  and  the  personal  representatives  of  the  Coun- 
tess of  Bath,  is,  which  of  them  shall  pay  a  certain  mort- 
gage debt. 

Charles  Williamson,  in  1801,  had  in  himself  the  legal  title 
to  the  part  then  remaining  unsold  of  what  is  called,  in  the 
case,  the  "  Genesee  Tract,"  and  he  held  it  as  a  trustee  foi 
Sir  William  Pulteney.  It  had  become  expedient  that  Sir  fV. 
P.  should  be  invested  with  the  legal  title,  but  Williamson  re- 
fused to  convey,  except  upon  certain  terms.  The  terms 
were,  that  Sir  W.  P.  should  pay  him  a  large  sum  of  money, 
as  a  remuneration  of  his  services  as  agent,  and  should  assume 
the  payment  of  certain  debts  against  Williamson,  and  the 
mortgage  debt  in  question  was  one  of  them.  This  debt  arose 
on  the  purchase  of  lands  lying  west  of  the  Gencse.e  river, 
194 


CASES  IN  CHANCERY.  251 

from  Andrew  Craigie,  in  1796,  and  the  bond  and  mortgage        1817. 
were  given  by  Williamson  to  Craigie,  to  secure  part  of  the  V^~N/~>^ 
purchase  money.     The  equity  of  redemption  which  William-  CUMBERLAND 
son  had  in  the  mortgaged  lands,  was  conveyed  along  with  the 
other  lands  to- Sir  W.  P.,  who  had  complied  with  the  terms  of 
settlement  proposed  by  Williamson  by  the  execution  of  two  cer- 
tain indentures.     Those  indentures  specify  precisely  the  man- 
ner in  which  the  mortgage  debt  was  assumed,  and  we  have 
no  evidence  of  any  other  agreement. 

By  one  of  the  indentures,  Sir  W.  P.  covenanted  with  W. 
to  indemnify  and  save  him  and  his  heirs,  executors,  &c., 
harmless  from  all  suits  and  demands,  by  reason  of  the  bond 
and  mortgage.  After  this  settlement,  Mr.  Troup  succeeded 
as  agent  for  Sir  W.  P.  in  respect  to  his  American  estates,  and 
with  competent  powers  to  manage  them,  and  in  the  lifetime 
of  Sir  W.  P.,  the  agent  paid  a  large  arrearage  of  interest  on 
the  bond  and  mortgage,  and  no  objection  was  made  to  the 
payment. 

Sir  W.  P.  died  intestate  ;  and  the  first  and  leading  point 
in  the  case  is,  whether  Sir  W.,  by  any  or  all  of  the  above 
*facts  and  circumstances,  made  the  mortgage  debt  his  own,  [  *  252  ] 
so  far  as  to  render  his  personal  estate,  in  the  hands  of  his 
personal  representative,  chargeable,  as  the  primary  fund  to 
be  applied  to  the  payment  of  that  debt,  in  exoneration  of 
the  land. 

The  rule  appears  to  be,  that,  as  between  the  representa-  As  between 
lives  of  the  real  and  personal  estates  of  Sir  W.  P.,  the  land  IjTCs^f^reai 
is  the  primary  fund,  and  is  to  be  first  applied;  and  the  per-  and  personal  es- 

l  /         ,  .    j    ,  .r  tale,-   the    land 

sonal  estate  is  only  to  be  resorted  to  as  auxiliary.  is  tne  primary 

I  think  it  can  be  easily  shown,  that  this  is  now  the  settled  fund  to  pay  otf 
English  rule  of  equity  upon  such  a  state  of  facts. 

In  Shafto  v.  Shafto,  (note  1  to  2  P.  Wms.  664.)  which 
was  decided  by  Lord  Thurlow,  in  1786,  the  devisee  of  land 
subject  to  a  mortgage  executed  by  the  testator,  covenanted 
with  the  ou-ner  of  the  mortgage,  that  the  estate  should  re- 
main a  security  for  the  debt  and  interest,  with  an  additional 
one  per  cent,  of  interest.  The  question  was,  whether  the 
personal  estate  of  the  devisee,  who  had  died  in  the  mean- 
time, should  not  pay  the  debt  and  interest,  or,  at  least,  the 
arrears  of  interest,  with  the  additional  one  per  cent.  But 
the  lord  chancellor  was  clearly  of  opinion,  that  the  person- 
al estate  ought  not  to  discharge  the  mortgage,  for  the  land 
was  the  primary  fund,  and  that  the  interest  must  follow  the 
nature  of  the  principal,  and  that  the  contract  for  the  ad- 
ditional interest  was,  also,  in  the  nature  of  a  real  charge. 

Lord  Kenyan,  as  master  of  the  rolls,  laid  down  the  same 
rule,  about  the  same  time,  in  the  case  of  Tankerville  v. 
Fawcct.  (2  Bro.  57.)  He  there  declared,  that  "where  an  estate 

195 


CASES  IN  CHANCERY. 

18L7.       descends,  or  comes  to  one,  subject  to  a  mortgage,  although 
*^^^s- ^^  the  mortgage  be  afterwards  assigned,  and   the  party  enters 
CUMBERLAND  into  a  covenant  to  pay  the  money  borrowed,  yet  that  shall  not 
kind  ms  personal  estate."     In  that  case,  the  devisee  of  land 
having,  voluntarily,  and    very  honorably,  charged   a   simple 
contract  debt  of  the  testator  upon  the  land  devised,  and  died, 
\  *  253  ]       the  question  was,  whether  his  personal  *estate  should  exon- 
erate his  real,  of  this  debt.    It  was  held  not  to  be  the  proper 
debt  of  the  devisee,  and  that  his  personal  estate  was  not  to 
oe  charged. 

Both  these  cases  contain  much  stronger  acts  of  the  substi- 
tuted debtor  than  the  oiie  before  me.  But  in  Tweddzll  v. 
Tweddell,  (2  Bro.  101.  152.)  Lord  Thurlow  examined  the 
subject  more  at  large,  discussed  the  point  with  his  customary 
boldness  and  sagacity,  and  declared  the  rule  of  equity  with 
a  certainty  and  precision  which  have  rendered  his  decisions  a 
leading  authority  in  all  the  subsequent  cases. 

In  that  case,  A.  purchased  the  equity  of  redemption,  in  an 
estate  under  mortgage,  and  agreed  with  the  mortgagor  to 
pay,  as  part  of  the  consideration  for  the  purchase,  the  mort- 
gage debt,  to  the  son  and  heir  of  the  mortgagee,  and  the 
residue  of  the  consideration  money  to  the  mortgagor.  He 
also  covenanted  with  the  mortgagor,  that  he  would  pay  the 
mortgage  debt  to  the  heir  of  the  mortgagee,  and  would  in- 
demnify the  mortgagor  and  his  representatives  from  the 
mortgage. 

On  a  bill  by  the  devisee  of  A.  to  have  his  personal  estate 
applied  in  discharge  of  the  mortgage,  it  was  urged  upon  the 
argument,  that  where  the  real  estate  was,  from  the  nature  of  the 
contract,  primarily  liable,  it  should  be  first  applied  ;  and  that 
though  covenants  are  added,  yet,  if  they  are  meant  as  collat- 
eral securities  to  the  land,  they  could  not  have  the  effect  of 
altering  the  fund.  The  chancellor  held,  in  that  case,  that 
the  personal  estate  of  A.  was  not  bound  to  exonerate  the 
real ;  and  he  said  it  was  a  clear  rule  that  the  personal  estate 
is  never  charged  in  equity,  where  it  is  not  at  law ;  that  there 
was  no  principle,  or  case,  in  that  Court,  to  warrant  its  being 
chargeable  in  equity  contrary  to  the  order  of  the  law ;  that 
the  grounds  upon  which  former  cases  had  been  decided,  ap- 
plied to  that  case ;  that  the  rule  of  marshalling  assets  was, 
that  it  must  be  a  debt  affecting  both  the  real  and  personal 
[  *  254  ]  estate  ;  that,  *in  that  case,  the  personal  estate  never  was  liable 
by  an  action  against  the  party,  and  so  he  thought  as  to  the 
case  of  Rochford  v.  Belvedere,  though  the  House  of  Lords 
had  held  the  personal  estate  liable  ;  that  the  buyer  here  took 
the  land  subject  to  the  charge,  but  the  debt,  as  to  him,  was 
a  real,  not  a  personal  debt ;  that  his  contract  with  the  mort- 
gagor was  only  that  the  debt  should  not  fall  upon  him,  and 
196 


CASES  IN  CHANCERY.  254 

it  was  a  mere  contract  of   indemnity,  and  he  would  have        1817. 
been  bound,  without  any  specific  contract  to  indemnify  him.  ^r~^~+»^ 

This  case  is  very  much  in  point;  and  if  the  rule  of  equity  CUMBERLAND 
be  correctly  stated,  it  puts  an  end  to  the  present  discussion.  CODRINGTOH. 
It  is  indeed  a  much  stronger  case  than  the  present,  for  here  is 
no  stipulation  with  the  seller  to  pay  to  the  owner  of  the  mort- 
gage the  mortgage  debt,  as  being  part  of  the  consideration 
money ;  and  here  is  no  express  covenant  to  pay  the  mortgage 
debt.     Here  is  only  a  naked  and  dry  covenant  of  indemnity. 

If  I  was  to  question  the  case  of  Tivedddl  v.  Tweddett,  it 
would  not  be  from  any  presumed  error  in  the  principle,  but 
from  a  doubt  of  its  application.     When  the   indentures  be- 
tween the  mortgagor  and  purchaser  recited  an  agreement, 
by  which  A.  had  agreed  to  pay  out  of  the  purchase  money, 
to  the  son  and  heir  of  the  mortgagee,  the  principal  and  inter- 
est due  on  the  mortgage,  being  2,153  pounds,  and  the  resi- 
due of  the  purchase   money,  being  1,345  pounds,    to    the 
mortgagor,  it  might  be  a  question  whether  the  son  and  heir 
could  not  have  sued  at  law  for  that  money,  as  so  much  re- 
ceived for  his  use.    It  has  been  held,  that  if  one  person  makes     If  one  pcrsor 
a  promise  to  another,  for  the  benefit  of  a  third  person,  that  |^kte0s  3,^")." 
third  person  may  maintain  an  action  at  law  on  that  promise,  for  the  benefit 
(Button  and  Wife  v.  Poo!,  2  Lev.  210.     1  Vent.  318.     T.  {«£  *"*£*£ 
Jones,  103.     Starkey  v.  Mill,  Styles,  296.     Martin  v.  Hind,  may    maintain 
Cowp.  437.     Marcliington    v.  Vernon,    1    B.  fy   Putt.    101.  £l£?££i!K 
note.    Lord  Alvanley,  in  3  B.  &/•  Putt.  149,   and  note,  ib. 
Schermerhorne  v.  Vanderhcyden,   1    Johns.  *Rep.   140.)     But       [  *  255  ] 
the  great  value  of  this  case  consists  in  the  principle  it  has 
so  fully  and  explicitly  declared.     As  Lord  Kent/on  observed 
in  another  cause,  "  The  use  of  cases  is  to  establish  principles; 
and  if  the  cases  decide  different  from  the   principles,  I  must 
follow  the  principles,  not  the  decisions." 

In  the  next  decision  of  Lord  Thurloiv,  which  followed 
some  time  after,  (Billinghurst  v.  Walker,  2  Bro.  604.)  he 
pushed  his  doctrine  to  the  utmost  length.  The  rectory  of 
F.  was  held  by  a  lease  for  lives,  subject  to  a  charge  of  2,200 
pounds  to  Martha  Vernon.  It  was  conveyed,  by  the  owner 
of  the  lease,  to  George  Woodroffc,  subject  to  the  same  charge, 
and  to  a  charge  of  900  pounds  to  one  Pert/;  and  in  the 
indenture  by  which  it  was  conveyed,  (and  to  which  Martha 
Vernon  was  a  party,)  he  covenanted  to  pay  the  charge  to 
Martha  Vernon,  as  well  as  the  other  charge.  He  discharged 
the  debt  to  Pery,  and,  afterwards,  gave  a  bond  to  Martha 
Vernon  to  pay  the  interest  of  the  2,200  pounds  during  her 
life,  and  the  principal  at  his  death.  After  repeated  renewals 
of  the  lease,  G.  W.  died,  having  devised  the  rectory  to  two 
of  the  defendants,  and  appointed  two  others  of  the  defend- 

197 


255  CASES  IN  CHANCERY. 

1817.       ants  his  executors.     The  charge  being  called  in  and  paid  to 
•s-^--N/^w_^  a  legatee  of  Martha  Vernon,  by  the  executors  of  G.  H\,  the 
CUMBERLAND  defendants   were   called  on  by  the   plaintiffs,  as  pecuniary 
CODRINOTOK.  legatees  of  G.    W.,  who  were  unpaid,  to  have  the  2,200 
pounds  replaced  by  the  devisees  of  the  rectory,  and  paid 
over  to  them.     But  the  defendants  insisted  that,  in  conse- 
quence of  all  these  transactions,  this  charge  had  become  the 
personal  debt  of  G.  W. 

This  was  a  very  strong  case  in  favor  of  the  doctrine  set 
up,  in  that  instance,  by  the  defendants.  There  was  not  only 
a  covenant  by  G.  W.,  the  purchaser  of  the  lease,  subject  to 
the  debt,  to  pay  the  debt,  and  a  covenant  in  the  same  instru- 
[  *  256  ]  ment  to  which  the  creditor,  or  owner  of  the  ^charge,  was  a 
party ;  but  there  was,  afterwards,  a  bond  given  to  her, 
altering  and  extending  the  original  time  of  payment.  This 
would  seem  to  have  amounted  to  that  "demonstration  of  t!:o 
intention  "  requisite  to  make  the  debt  a  personal  obligation. 
But  it  was  held,  that  giving  the  bond  was  not  sufficient ;  that 
it  was  merely  a  collateral  security,  which  did  not  vary  the 
nature  of  the  charge,  which  continued  primarily  a  debt  upon 
the  estate ;  and  the  defendants  were,  consequently,  decreed 
to  pay  over  the  money.  It  was  admitted  that  G.  W.  made 
himself  personally  liable  to  the  creditor,  but  still  it  did  not 
throw  the  charge  on  his  personal  estate,  because  there  was 
not  a  demonstration  of  such  intention.  So  that  it  seems  not 
to  be  sufficient  that  the  stranger,  who  takes  the  estate  subject 
to  a  debt,  should  become  legally  responsible  to  the  creditor, 
unless  that  responsibility  be  accompanied  with  evidence  of 
an  intention  to  assume  the  debt,  as  a  personal  debt  of  his  own, 
and  detached,  as  it  were,  from  the  land. 

The  case  of  Mcttthcson  v.  Harchvicke,  (note  to  2  P.  Wms. 
664.)  was  decided  about  the  same  time  with  the  one  I  have 
just  considered,  by  Lord  Kenyon,  as  master  of  the  rolls. 
The  testator  there  devised  an  estate  to  A.  and  B.  in  fee, 
charged  with  the  payment  of  debts  and  legacies.  A.  paid 
all  the  debts  and  legacies,  except  one  legacy  of  1 00  pounds, 
for  which  he  gave  his  note  to  the  legatee,  and  died.  It  was 
admitted  that  he  had  paid  off  the  other  encumbrances,  with 
a  view  of  easing  the  estate  from  them  altogether ;  but  the 
note  there  was  held  to  be  merely  a  collateral  security,  and 
that  the  devised  estate  was  the  primary  fund  for  the  pay- 
ment of  it. 

The  question  in  these  latter  cases  seems  to  be,  not  merely 
whether  the  purchaser  has  rendered  himself  liable  at  law  to 
a  suit  by  the  creditor,  but  which  estate  is  to  be  deemed  the 
[  *  257  ]  primary  fund,  and  which  only  the  auxiliary.  *When  a  man 
gives  a  b-^nd  and  mortgage  for  a  debt  of  his  own  contracting, 
198 


CASES  IN  CHANCERY.  257 

the  mortgage  is  understood  to  be  merely  a  collateral  security        1817. 
for  the  personal  obligation.     But  when  a  man  purchases,  or  v_**~\^^> 
has  devised  to  him,  land  with  an  encumbrance  on  it,  he  be-  CUMBERLAND 
comes  a  debtor  only  in  respect  to  the  land  ;  and  if  he  promises  CODRINGTON 
to  pay  it,  it  is  a  promise  rather  on  account  of  the  land,  which     where  a  man 
continues,  notwithstanding,  in  many  cases,  to  be  the  primary  gives    a  bond 
fund.     The   same   equity  which  in   other  cases   makes  the  for     u°ISo-wu 
personal  estate  contribute  to  ease  the  land,  as  between  the  dcbt>  the  mort- 
real  and  personal  representatives,  will  here  make  the  land  ^toiiateraTse^ 
relieve  the  personal  estates.     There  is  good  sense  and  justice  curity.    But  if 
in  the  principle ;  and  I  feel  the  force  of  the  doctrine,  that  it  fewee  oHand 
requires  very  strong  and  decided  proof  of  intention,  before  encumbered, 
the  Court  can  undertake  to  shift  the  natural  course  and  order  Mreonaliy""'^- 
of  obligation   between  the  two  estates.     We  have  already  bie  to  thecredi- 
witnessed  the  tenacity  with  which  the  Court  adheres  to  the  t|)e  lami^Tfar 
natural  order  of  the  funds,  when  a  stranger  comes  in  and  as  relates  to  the 
Xakes  the  encumbered  land ;  and  the  books  arc  full  of  cases,  ^setsf  'i"g  the 
on  the  other  hand,  which  subject  the  personal  estates  pri-  primary     fund 
marily,  and  as  "  the  natural  fund,"  to  the  payment  of  debts  unlessP  acoJ 
originally  contracted  by  the  party,  and  even  though  the  debt  lrary,  inljcnt  be 
should  be  created  by  mortgage,  without  either  bond  or  cov- 
enant.     (I  P.  Wins.   291.  Free,  in   Ch.  7.  61.  3  P.  Wms. 
358.  1  Vesey,  251.    2  Atk.  430.  1  Bro.  454.) 

I  proceed  to  the  casa  of  JVoods  v.  Huntingford,  (3  Ve- 
sey,  128.)  in  which  Lord  Ahanley  brings  the  subject  into 
discussion. 

R.  H.  had  mortgaged  land  to  raise  money  for  the  use  of 
his  son  John.  The  land  was  afterwards  conveyed,  subject 
to  the  mortgage,  to  the  use  of  John,  who  joined  with  his 
father  in  a  covenant  for  the  payment  of  the  money.  The 
land  was  next  reconveyed  to  A*.  H.,  who  covenanted  to 
discharge  the  mortgage,  and  afterwards  borrowed  a  further 
sum  from  the  mortgagee,  and  made  a  new  mortgage  for  the 
entire  debt.  The  question  was  between  the  heir  *and  personal  f  *  258  j 
representatives  of  R.  H.,  which  estate  should  bear  the  debt. 

It  is  difficult  to  perceive  a  point  in  the  case;  and  the 
master  of  the  rolls  was  clearly  of  opinion,  that  R.  H.  had 
made  the  debt  his  own,  though  it  was  primarily  the  debt 
of  his  son  in  equity,  and  of  himself  and  his  son  at  law. 
He  properly  adds,  that  if  these  facts  were  not  sufficient  to 
make  the  debt  his  own,  a  man  never  could  make  a  debt  his 
own,  without  express  declaration.  He  was  very  careful  not 
to  contradict,  in  any  degree,  the  principle  established  in 
Twcdclell  v.  Tweddell,  which  was  a  very  governing  case.  In 
that  case,  there  was  no  communication  with  the  mortgagee, 
but  only  a  covenant  of  indemnity,  and  he  did  not  by  that  act 
take  the  debt  upon  himself  personally. 

199 


258  CASES  IN  CHANCERY. 


1817.  ^n  Burter  v-  Cutler,  (5  Vesey,  534.)  the  case  of  Tweddell 

V^^-N^*^  v.  Tiveddoll  is  again  recognized  and  followed  by  the  mastei 
CUMBERLAND  of  the  rolls.  This  was  the  purchase  of  an  equity  of  re- 
CdDRiNGTON  demption,  and  an  agreement  with  the  vendor  to  pay  the 
mortgage  debt  of  2,000/.,  and,  also,  1,000/.  to  the  vendor: 
but  here,  likewise,  there  was  no  communication  with  the 
mortgagee.  It  was  admitted,  that  Tweddell  v.  Tweddell  was 
in  point,  and  that  the  mortgage  debt  remained  primarily 
chargeable  upon  the  real  estate.  It  was  not  the  proper  debt 
of  Butler,  the  purchaser,  and  he  could  not  have  been  per- 
sonally sued  by  the  mortgagee.  Lord  Alvanley  collected 
from  the  decisions,  that  if  a  man  purchases  an  estate  subject 
to  a  charge,  and  does  no  more  than  covenant  with  the  vendor 
that  he  shall  be  indemnified,  it  is  not  his  debt,  except  in 
respect  to  the  estate  ;  and  the  estate,  and  not  his  personal 
property,  must  bear  it.  He  admitted  that  the  purchaser 
might  have  been  liable  circuitously  to  the  vendor  for  his 
indemnity,  but  he  said  the  decree  would  have  been  then  for 
sale  of  the  estate. 

The  case  of  Waring  v.  Ward  (5  Fesey,  670.  7  Vesey, 
332.)  is  still  more  interesting;  for  it  gives  the  opinion  of 
Lord  Eldon  on  this  much  litigated  question. 

[  *  259  ]  *In  that  case,  the  testator  had  purchased  an  estate  subject 

to  a  mortgage.  He  borrowed  the  sum  of  20,000/.,  and  gave 
a  new  bond  and  mortgage  for  it,  and  thus  made  a  new  and 
different  contract  with  the  mortgagee.  The  heir  was  decreed 
to  be  exonerated  by  the  personal  assets  of  the  testator  from 
the  payment  of  that  sum,  because  the  real  contract  was  only 
secondary,  and  the  personal  was  the  primary  contract. 
Nothing  can  be  clearer  than  the  conclusion  in  this  case  ;  but 
Lord  Eldon  gave  his  view  of  the  general  doctrine. 

He  observed,  that  the  rules  on  the  subject  were  extremely 
clear,  and  that  the  principle  upon  which  the  personal  estate 
was  first  liable  in  general  cases  was,  that  the  contract  was 
primarily  a  personal  contract,  and  the  land  bound  only  in 
aid  of  the  personal  obligation  to  fulfil  the  personal  contract. 
That  upon  the  transfer  of  a  mortgage,  not  originally  the 
personal  debt  of  the  party,  by  adding  his  personal  contract, 
he  will  not  make  his  personal  estate  liable,  in  the  first  in- 
stance. That  Lord  Thurlow  carried  the  doctrine  to  this 
extent,  viz.  that  if  the  purchaser  of  the  equity  of  redemp- 
tion covenants  to  pay  the  mortgage  debt,  and  also  to  raise 
the  interest  from  four  to  five  per  cent.  ;  yet,  as  between  the 
real  and  personal  representatives  of  the  purchaser,  the 
additional  interest  was  not  even  primarily  a  charge  upon 
the  personal  estate,  for  it  was  incident  to  the  charge.  That, 
even  independent  of  a  covenant  of  indemnity,  the  purchaser 
200 


CASES  IN  CHANCERY.  259 

>f  an  equity  of  redemption  is  bound  to  indemnify  the  vendor        1817. 
against  any  personal  obligation.,  to  pay  a  debt  charged  on  an  •s^^-v-^.^ 
estate  of  which  he  had  become  the  owner.     That  the  case  CUMBERLAND 
of  Tweddell  v.  Tweddell  went  upon  the  principle,  that  the  (^DRIK'GTojf 
debt  due  to  the  mortgagee  was  never  a  debt  directly  from 
that  person  whose  personal  assets  were  sought.     That,  if 
Lord  Thurlow  was  right  upon  the  fact,  the  case  was  a  clear 
authority  that  the  purchase  of  an  equity  of  redemption  will 
not  make  the  mortgage  debt  the  debt  of  the  purchaser.     That 
in  *his  hands,  it  is  the  debt  of  the  estate,  and  a  mortgage       [  *  260  1 
interest,  as  between  his  representatives. 

In  the  case  of  The  Earl  of  Oxford  v.  Lady  Rodney, 
(14  Vesey,  417.)  the  testator  purchased  an  estate  subject  to 
a  mortgage,  and  paid  the  consideration  remaining  for  the 
vendor,  beyond  the  mortgage,  to  the  vendor,  and  then  cov- 
enanted directly  with  the  mortgagee  to  pay  him  the  mortgage 
debt.  The  question  arose  between  his  heir  at  law  and 
personal  representatives ;  and  Sir  Wm.  Grant,  the  master  of 
the  rolls,  took  occasion  to  observe,  that  it  was  not  very  easy 
to  reconcile  Tweddell  v.  Tweddell  with  the  principle  estab- 
lished by  Lord  Hardwicke  in  Pardons  v.  Freeman,  viz.  that 
where  the  mortgage  money  was  taken  as  part  of  the  price, 
the  charge  becomes  a  debt  from  the  purchaser.  But  he 
admits  that  Lord  Thurloiv's  principle  was  right,  if  the  real 
result  of  the  facts  in  that  case  was,  that  the  contract  of  the 
purchaser  never  gave  any  direct  and  immediate  right  against 
himself  to  the  mortgagee,  and  was  only  a  contract  of 
indemnity  to  the  vendor  against  the  mortgage.  This- case 
differed  materially  from  that  of  Tweddell  v.  Tweddell,  for 
there  was  a  direct  contract  with  the  mortgagee,  and  in  that 
case  there  was  no  dealing  with  the  mortgagee. 

Though  Sir  Wm.  Grant  declares,  that  Tweddell  v.  Tiveddell 
is  now  to  be  looked  upon  as  an  authority  to  the  extent  to 
which  it  goes,  yet  he  seems  to  intimate  that  an  inconsistency 
existed  between  that  decision  and  what  Lord  Thurloiv  said 
in  Billinghurst  v.  Walker,  "  that  if  the  charge  was  part  of 
the  price,  then  the  personal  estate  was  liable."  I  cannot 
understand  this  observation  of  Lord  Thurlow,  nor  see  the 
importance  of  the  criticism.  The  mortgage  debt  is  always 
part  of  the  price,  unless  there  be  an  agreement  that  the 
vendor  should  take  up  the  encumbrance.  The  purchaser-, 
wherever  he  covenants  to  indemnify  the  vendor,  takes  the 
land  cum  onere :  this  is  the  clear  understanding  of  the  parties, 
md  the  value  of  the  encumbrance  will,  of  course,  *be  de-  [  *  261  ] 
ducted  from  the  real  value  of  the  land.  In  TineddeU  v. 
Tiveddell,  the  charge  was  part  of  the  price,  and  that  part  of 
the  price  the  purchaser  was  to  pa^  to  the  mortgagee.  This 

VOL.  III.  26  201 


261  GAMES  O  CHANCERY. 

1817.       was  *ne  case?  a^s°j  m  Butler  v.  Butler,  yet  Lord  Alvanlei, 

^*~^~+~s  takes  no  notice  of  that   distinction.     In  the  very  case  of 

CUMBERLAND  Billinghurst  v.  Walker,  the  charge  was,  in  one  sense,  part  of 

the  price,  for  the  land  was  conveyed  to  the  testator  as  a  mar- 

CODRINGrON.        .         r  '.  r         i   •  •  r  <•  i       i  •  i 

riage  portion  tor  his  wife,  after  deducting  the  encumbrances 
which  the  testator  was  to  pay.  All  sales  of  equities  of  redemp- 
tion, where  there  is  no  express  agreement  to  the  contrary, 
pass  the  estate  with  the  encumbrance ;  and  the  purchaser  will 
always  withhold  the  amount  of  the  encumbrance  from  what 
is  deemed  the  value  of  the  land,  and  he  pays  only  the  res- 
idue to  the  vendor.  The  only  question  in  all  these  cases  is, 
whether  a  right  of  action  at  law  does  not  accrue  to  the  mort- 
gagee, when  the  amount  of  the  mortgage  debt  is  distinctly 
marked  and  separated  from  the  price  to  be  paid  to  the 
vendor,  and  by  agreement  between  vendor  and  vendee,  is 
left  in  the  hands  of  the  latter  for  the  use  of  the  mortgagee. 
It  was  held  in  Nelson  v.  Blight,  (I  Johns.  Cos.  205.)  that 
wiiure  a  trust  where  a  trust  was  created  for  the  benefit  of  a  third  person, 
is  created  for  though  without  his  knowledge  at  the  time,  he  may  affirm  the 

the  Iwmentofa  »  -  .„      '  * 

third     person,  trust,  and  enforce  its  execution ;  and  it  it  be  to  pay  money, 
though  without  }ie  may  enforce  its  execution  at  law.     This  doctrine  was 

his    knowledge.  .        «  _.  .       ___  ,-,  ttn    r  i  r»          ^/^\ 

he  may  after-  again  affirmed  in  Weston  v.  Jaarfcer;  (12  Johns.  Hep.  2/o.) 
wards  affirm  it,  anc|  j  tnjnk  the    same    principle   is   to   be    met  with  in  7 

and  enforce  the     „, 

execu  tion  of  it.      Cra  11  Cfl ,  71. 

This  series  of  cases,  which  I  have  thus  examined,  shows, 
very  conclusively,  that  by  the  English  equity  system,  as  it 
has  been  declared  received  for  the  last  thirty  or  forty  years, 
the  purchase  of  the  equity  of  redemption,  in  this  case,  by 
Sir  W.  P.,  with  a  covenant  of  indemnity  to  Williamson,  the 
mortgagor,  against  the  mortgage  debt,  did  not  make  the  debt 
nis  own,  so  as  to  render  his  personal  assets  the  primary  fund 
[  *  262  ]  to  pay  it.  The  cases  all  agree  *that  no  covenant  with  the 
mortgagor  is  sufficient  for  that  purpose.  There  must  be  a 
direct  communication  and  contract  with  the  mortgagee ;  and 
even  inui  is  not  enough,  unless  the  dealing  with  the  mortgagee 
be  of  such  a  nature  as  to  afford  decided  evidence  of  an 
intention  to  shift  the  primary  obligation  from  the  real  and 
personal  fund.  The  cases  of  lived  Jell  v.  Tweddell,  and 
Butler  v.  Butler,  contained  covenants  with  the  mortgagor  to 
pay  the  encumbrance,  and  that  was  not  sufficient.  The 
cases  of  Shafto  v.  Shafto,  Bullinghurst  v.  Walker,  and  Mat- 
theson  v.  Hardwicke,  contained  a  communication  and  contract 
with  the  mortgagee,  to  pay  the  debt,  and  even  that  was  not 
sufficient.  In  Tankerville  v.  Faivcct,  the  devisee  voluntarily 
assumed  a  simple  contract  debt,  and  charged  it  on  his  land, 
and  that  was  not  sufficient.  It  required  such  a  special  deal 
ing  as  in  Woods  v.  Huniingford,  and  Wiring  v.  Ward}  and 
202 


CASES  IN  CHANCERY.  -262 

Oxford  v.  Hodney,  by  which  the  original  contract  seems  to        1817. 
have  been  essentially  changed,  and  lost  or  merged  in  the  -^.x-^-^.,' 
new  and  distinct  engagement  with  the  mortgagee.     It  was  CUMBERLAND 
clear,  from  the  res  gesta  in  these  latter  cases,  that  the  party  CODRI£GTOS 
taking  the  encumbered  estate  meant  to  take  upon  himself 
the  debt,  absolutely,  and  at  all  events,  as  a  personal  debt  of 
his  own.     So  far  from  being  liable  to  difficulty,  it  appears 
that  the  decision  in  Tweddell  v.  Tweddell  did  not  go  so  far 
as  other  cases  had  done ;  and  it  is  only  peculiar  in  laying 
dowi  us  a  test,  whether  there  was  or  was  not  a  direct  per- 
sonal dealing  and  contract  with  the  mortgagee,  by  which  the 
debt  was  assumed. 

But  we  are  told  that  no  English  authorities  since  1775  are 
of  binding  authority,  and  that  our  Courts  are  not  to  vary 
with  the  opinions,  or  perhaps  caprice,  of  English  tribunals. 
It  is  true,  that  we  are  not  to  be  bound  by  their  errors,  nor 
do  we  feel  subdued  by  their  authority ;  but  we  can  listen 
with  instruction  to  their  illustration  and  application  of  the 
principles  of  the  science.  "  Far  from  me  and  from  my 
friends  be  such  frigid  philosophy,"  or  such  unreasonable 
*pride,  as  may  turn  us  with  indifference  or  disdain  from  the  [  *  263 
decisions  and  the  wisdom  of  other  nations.  It  is  to  be 
recollected,  that  we  have  very  little  domestic  precedent  in 
matters  of  equity  to  guide  us.  A  question  of  this  kind  has, 
probably,  never  before  arisen  in  our  own  Courts.  We  must 
resort  for  information  to  the  Courts  of  that  nation  from  which 
our  jurisprudence,  as  well  as  the  best  of  our  institutions,  are 
derived;  and  we  can  do  it  with  uncommon  advantage. 
Within  the  last  forty  years,  the  principles  of  law,  as  taught 
in  their  Courts  of  equity,  have  been  cultivated  with  great 
talent,  and  methodized  and  explained  with  great  success. 
During  that  interval  of  time,  their  Courts  of  equity  have 
had  a  succession  of  learned  men  to  preside  in  them,  who 
have  shed  light  on  this  portion  of  municipal  law,  and  en- 
riched it  with  their  wisdom.  It  cannot,  I  presume,  be 
seriously  expected,  or  even  wished,  by  the  liberal  counsel 
who  argued  this  cause,  that  I  should  confine  my  researches 
to  the  more  loose,  inaccurate,  and  scanty  repositories  of 
equity  learning  of  a  date  prior  to  our  revolution,  and  that  I 
should  shut  my  eyes  upon  the  improvements  and  lights  of 
the  present  age.  Within  the  period  I  have  referred  to,  I 
may  be  permitted  to  mention,  without  meaning  any  invidious 
comparisons,  that  we  have  the  results  of  the  vast  labors  and 
eminent  discretion  of  Lord  Eldon,  and  are  equally  instructed 
by  the  enlightened  judgment  of  Sir  Wm.  Grant,  and  the 
great  diligence  and  accurate  learning  of  Lord  Alvanley. 
Within  the  same  period  we  have,  also,  to  borrow  a  portrait 

203 


263  CASES  TN  CHANCERY. 

3817        from  Gibbon,  "the  majestic  sense  of  Thurloiv,  and  the  skilfu\ 

^^^s~*^s  eloquence  of  Wedderburne."    Least  of  all  ought  a  complain! 

CUMBERLAND  to  be  made  against  the  application  of  the  'existing  English 

law  to  this  case,  for  the  parties  litigant  are  British  subjects, 

CODRINGTON.  .,  --1-171  i          /•        i  r  i-       • 

resident   in  England,  and  several  of    them  or   very  distin- 
guished rank. 

It  will,  however,  be  found,  upon  further  inquiry,  that  these 
[*264]  later  decisions  are  not  introductory  of  any  new  rule  *or 
principle  of  equity,  but  are  only  the  application  of  principles 
long  antecedently  known  and  declared.  This  I  will  now 
undertake  to  show ;  for  I  admit  that  the  parties  are  entitled 
to  have  the  case  decided  according  to  the  existing  law  of 
this  Court,  though  that  law  should  happen  to  be  different  from 
what  is  now  understood  to  be  the  rule  at  Westminster  Hall. 

To  begin  with  Pockley  v.  Pockley,  (1  Fern.  36.)  which 
came  before  Ch.  Nottingham,  in  1681.  The  testator,  in  that 
case,  had  purchased  an  annuity  out  of  mortgaged  lands,  and 
taken  an  assignment  of  the  mortgage  to  protect  his  purchase ; 
and,  by  his  will,  he  directed  the  mortgage  debt,  among 
others,  to  be  paid  out  of  his  personal  estate.  The  question 
was  between  the  representatives  of  the  personal  and  real  es- 
tates; and  the  chancellor  directed  this  debt  to  be  paid  out 
of  the  testator's  personal  estate,  by  reason  of  the  express 
direction  in  his  will.  This  case  shows,  that,  at  that  early  day, 
the  purchase  of  land,  subject  to  a  mortgage  debt,  did  not 
make  the  debt  personal ;  and  that  it  required  an  express  dec- 
laration, by  will,  to  charge  the  personal  assets  with  it.  But 
I  cite  the  case  principally  for  the  observations  made  by  the 
counsel  upon  the  argument,  and  which  may  be  considered 
as  evidence  of  the  rule  as  then  understood.  The  counsel 
observed,  by  way  of  illustration,  that  if  a  man  purchased  an 
equity  of  redemption,  he  must  hold  the  land  subject  to  the 
debt ;  but  the  debt  never  charged  his  person,  nor  did  it,  in 
any  sort,  become  his  proper  debt. 

So,  again,  in  Coventry  v.  Coventry,  (9  Mod.  12.  2  P.  Wms. 
222.  Str.  596.)  Earl  Gilbert  had  an  estate  for  life,  with 
power  to  settle  a  jointure  on  his  wife  ;  and  he  covenanted  to 
settle  lands  according  to  the  power,  and  died  before  the  power 
was  executed.  The  plaintiffs  brought  a  bill  against  the  heir 
to  have  a  specific  execution  of  the  power.  Lord  Macdesjield, 
with  the  assistance  of  two  judges,  held,  "that  the  assets  of 
[  *  265  ]  Earl  Gilbert  should  not  *come  in  exoneration  of  the  settled 
estate  ;  for  wherever  assets  are  brought  in  exoneration,  there 
the  debt  originally  charged  the  personalty.  The  covenant 
remained  as  a  real  lien  on  the  settled  estate,  and  there  could 
be  no  application  of  the  personal  estate,  since  there  wat  no 
debt  of  which  the  peisonal  estate  was  to  be  exone»*»t«  \ 
204 


CASES  IX  CHANCERY.  26i 

Here  the  general  principle  pervading  all  the  subsequent        I8l7. 
cases  was  strongly  and  distinctly  declared.  ^*r~^-+*~ 

In  Bagot   v.    Oughton,  (1   P.    Wms.  347.)    the   ancestor  CUMBERLANE 
mortgaged  his  estate,  and  died.     His  daughter  and  heir  mar-  r,,,,,,^,' 

i      r»  i  i          f       '  111  I  ill  L-ODR1NGTO1I. 

ned  Jo.,  who,  by  fine,  settled  the  estate  on  her  and  her  hus- 
band, and  he  joined  in  an  assignment  of.  the  mortgage,  and 
covenanted  to  pay  the  money.  It  was  held,  by  Lord  Ch. 
Coivper,  that  the  personal  estate  of  the  deceased  husband 
was  not  liable  to  be  applied  in  ease  of  the  mortgaged  prem- 
ises ;  for  the  covenant  was  only  an  additional  security  for  the 
satisfaction  of  the  lender,  and  was  not  intended  to  alter  the 
nature  of  the  debt. 

That  case  goes  as  far  as  any  of  the  modern  cases.  The 
husband  had  there  become  jointly  seised  of  the  estate,  and 
he  deals  with  the  mortgagee,  by  his  personal  covenant  to  pay, 
and  still  the  order  of  the  funds  was  not  affected. 

The  subsequent  case  of  Evelyn  v.  Evelyn  (2  P.  Wms. 
659.)  is  equally  strong,  and  it  had  great  sanction:  it  adhered 
to  such  strictness,  in  preserving  the  original  character  of  the 
two  funds,  as  even  to  shake  the  resolu^n  of  Lord  Thurlow. 

In  that  case,  G.  E.  mortgaged  the  land  for  1,500/.,  and  his 
son  G.  E.  afterwards  covenanted  ivith  the  assignee  of  the 
mortgage  to  pay  the  money.  He  succeeded  to  the  premises, 
by  settlement,  after  the  death  of  his  father,  and  died  intes- 
tate. The  question  was,  whether  his  personal  estate  should 
be  applied  to  pay  off  the  mortgage  executed  by  his  father, 
in  consequence  of  the  covenant  he  made.  It  was  held,  by 
Lord  Chancellor  King,  assisted  by  the  chief  justice  of  the 
K.  B.,  and  the  master  of  the  rolls,  that  *the  son's  personal  [*266  j 
estate  was  not  to  be  charged,  for  it  was  still  the  father's  debt, 
and  the  covenant  of  the  son  was  to  be  considered  only  as 
a  surety  for  the  land,  which  was  the  original  debtor. 

Lord  Thurlow,  in  Ancaster  v.  Mayer,  (I  Bro.  454.)  seemed 
inclined  to  think,  that,  in  that  case,  the  son,  by  his  covenant, 
had  made  the  debt  his  own  ;  and  he  supposed  the  idea  of  the 
Court  must  have  been,  that  the  covenant  was  by  way  of  ac- 
commodating the  charge,  and  not  of  making  the  debt  his 
•wn.  But  there  are  so  many  cases,  and  even  some  decided 
oy  Lord  Thurlorv,  in  which  a  mere  bond  or  covenant  to  the 
mortgagee  will  not,  of  itself,  and  without  other  circumstances, 
shift  the  charge,  that  I  see  no  ground  for  surprise  at  this 
commanding  decision. 

In  Leman  v.  Neivnham,  (1  Vesey,  57.)  the  same  decision 
was  given.  An  estate  descended  to  a  son,  encumbered  with 
a  mortgage,  and  he  covenanted  with  the  assignee  of  the  mort- 
gage 10  pay  it,  and  died.  It  was  held,  by  the  master  of  the 
rolls,  on  the  authority  of  the  cases  of  Bagot  v.  Oughton, 

205 


266  CASES  IN  CHANCERY. 

and  Evelyn  \.  Evelyn,  thai  the  personal  estate  of  the  son  was 
exempted,  and  that  it  was  still  the  ancestor's  debt. 
CUMBERLAND       We  come  next,  in  the  order  of  time,  to  the  case  of  Par- 

-•ODRINGTUN  sons  v.  /:  VeeTOOM,  (Amb.  115.  2  P.  Wms.  664.  note.)  which 
seems  to  have  been  much  relied  on  by  the  counsel  for  the 
plaintiffs,  though  I  cannot  perceive  that  it  disturbs,  in  any 
material  degree,  the  general  current  of  authority. 
%  The  case  is  very  loosely  and  imperfectly  reported ;  and  if 
Lord  Hardwickc  is  not  made  to  speak  with  the  precision  with 
which  he  usually  thought,  it  must  be  imputed  to  the  deficiency 
of  the  case,  which  gives  us  no  facts,  and  a  very  brief  note  of  an 
opinion.  He  says,  that  if  the  ancestor  has  done  no  act  to 
charge  himself  personally,  the  heir  at  law  must  take  the  es- 
tate cum  onere.  So,  if  one  purchase  the  equity  of  redemp- 
tion, with  usual  covenants  to  pay  off  the  mortgage,  he  knows  of 
no  determination  upon  such  a  case,  but  is  inclined  to  think 

*267]  the  heir  could  not  come  to  have  *the  estate  exonerated. 
Then  he  adds,  that  such  was  not  the  case  before  him,  which 
was  an  agreement  vyi^i  the  vendor  for  the  purchase  of  an 
estate  for  90/.,  of  MJpch  he  agreed  to  pay  86/.  to  the  mort 
gagee,  and  4/.  to  the  vendor ;  and  he  thinks,  in  that  case,  the 
words  were  sufficiently  strong,  by  express  contract  to  pay, 
to  show  an  intention  to  make  the  debt  his  own,  and  the  heir 
was  entitled  to  the  application  of  the  personal  estate. 

I  have  already  observed,  that  such  a  special  agreement 
between  the  purchaser  and  seller  of  the  equity  of  redemption, 
by  which  the  mortgage  debt  is  considered  as  so  much  money 
left  in  the  hands  of  the  purchaser  for  the  use  of  the  mort- 
gagee, would  seem  to  be  sufficient  ground  for  a  suit  at  law 
by  the  mortgagee.  If  so,  this  case  is  directly  within  the 
principle  of  Tweddell  v.  Tweddell;  and  Lord  Thurloic  is  said 
(3  Vesey,  131.)  even  to  have  approved  of  that  decision. 
But  the  case  is  certainly  of  no  use  to  the  present  plaintiffs, 
as  Lord  Hardwickc  admits,  that  the  purchase  of  an  equity, 
with  covenants  to  pay  off  the  mortgage,  does  not  make  the  debt 
personal ;  and  in  the  case  before  me,  it  is  again  to  be  repeated, 
there  is  nothing  more  than  a  covenant  of  indemnity.  I  have 
no  doubt,  that  if  we  were  in  possession  of  all  the  facts  in  that 
case,  we  should  discover  some  special  circumstances  which 
took  it  out  of  the  general  rule.  As  it  now  stands,  it  is  re- 
pugnant to  most  of  the  cases  which  preceded  and  followed 
it.  The  mere  covenant  ivith  the  vendor  to  pay  the  mortgage 
debt  does  not  shift  the  charge  from  the  fund  primarily  liable. 
Most  of  the  cases  do  not  give  that  effect  even  to  a  covenant 
with  the  mortgagee.  There  must  be  circumstances  in  ad- 
dition to  the  covenant.  Lord  Hardwiclce  himself  so  decided, 
shortly  after  the  case  of  Parsons  v.  Freeman.  Thus,  in  L(  \rii 
206 


CASES  IN  CHANCERY.  267 

v  Wangle,  (Ami.  150.  2  P.  Wms.QQ^.  note.)  an  estate  came        1817. 
to  the  wife  encumbered  with  a  mortgage  debt.     The  husband  x^»— v-^.-x 
borrowed  money,  by  bond  and  mortgage  on  the  wife's  estate,  CUMBERLAND 
and  she  joined  in  the  mortgage,  *as  the  money  was  partly  CODRINGTON. 
for  the  husband's  use,  and  partly  to  discharge  her  debts,  dum       r  %  ogg  i 
sola.     The  husband  gave  a  bond,  and  also  covenanted  to  pay 
the  whole  moneys  secured  by  the  mortgage.     But  Lord  Hard- 
uicke  considered  the  land  as  still  the  primary  fund,  and  he 
would  not  compel  the  husband  to  exonerate  the  land.     He 
presumed  the  intention  was  otherwise. 

Fore,  tcr  v.  Leigh  (Amb.  171.  2  P.  Wms.  664.  note.)  is 
a  strong  decision  of  Lord  Hardwicke  to  the  same  effect. 
The  testator  purchased  several  estates  subject  to  mortgages, 
with  regard  to  one  of  which  he  covenanted  to  pay  the  mort- 
gage money ;  and  as  to  another  estate  under  the  mortgage, 
he  purchased  only  part  of  it,  and  he  and  another  purchaser 
covenanted  to  pay  their  respective  shares,  and  indemnify  each 
other.  It  was  held,  as  between  the  legatees  of  the  personal 
and  the  devisee  of  the  real  estate,  that  these  covenants  did 
not  make  the  mortgages  personal  debts  of  the  testator.  That 
was  not  the  purpose  of  the  covenants. 

But  the  case  of  the  Earl  of  Belvedere  v.  Rochfort  (6  Bro. 
P.  C.  520.)  is  thought  to  have  established  a  rule  much  more 
favorable  to  the  heir  than  that  declared  in  many  of  the  cases, 
and  the  counsel  for  the  complainants  seemed  to  place  much 
reliance  upon  its  application,  as  well  as  upon  its  authority. 

The  case  was  this:  Hug-hes,  in  1706,  mortgaged  lands  in 
Ireland  to  Proby,  to  secure  a  debt  of  450  pounds,  with  in- 
terest. In  1707,  H.  sold  his  equity  of  redemption  to  Lord 
Rochfort  for  900  pounds,  and  in  the  covenant  of  warranty, 
he  excepted  the  mortgage  ;  and  the  deed  stated  that  the  mort- 
gage debt  and  interest  were  to  be  paid  and  discharged  by 
Rochfort  out  of  the  consideration  of  900  pounds.  On  the 
back  of  the  deed  there  was  also  endorsed  a  receipt  for  the 
900  pounds,  in  this  manner,  viz.  "450  pounds  on  the  per- 
fection of  the  deed,  and  450  pounds  allowed  on  account  of 
the  mortgage." 

*Lord  Rochfort  never  paid  the  debt;  and  in  1726,  he  *269] 
made  his  will,  and  gave  a  large  personal  estate  to  his  wife ; 
and  he  also  devised  the  mortgaged  premises  to  her  for  life, 
and  then  to  his  eldest  son,  George  Rochfort,  in  fee,  subject  to 
certain  debts  and  legacies.  He  declared  that  his  wife  was  to 
hold  the  land  devised  to  her,  free  of  the  mortgage  debt  and 
every  encumbrance,  during  her  life ;  and  he  directed  that  his 
son  George  should  pay  the  interest  of  that  mortgage  debt  out 
of  other  lands  devised  to  him.  After  giving  some  pecuniary 
legacies,  he  bequeathed  the  rest  of  his  personal  estate  after 

207 


269  CASES  IN  CHANCERY. 

1817.       payment  of  all  his  just  debts,  and  all  his  real  estate,  to  his  son 
S^^^N/-^^    George,  and  made  him  sole  executor. 

CUMBERLAND  George,  the  son,  proved  the  will  after  his  father's  death, 
CODRINGTON  ^^  ne  kept  down  the  interest  on  the  mortgage  debt,  but 
never  paid  the  principal.  His  mother,  also,  released  to  him 
her  life  estate  in  the  mortgaged  premises.  In  1730,  he  made 
his  will,  and  gave  small  annuities  to  his  younger  sons ;  the 
mortgaged  premises  he  gave,  according  to  such  estate  as  he 
had  therein,  to  his  youngest  son,  William  Rochfort ;  and  he 
gave  the  principal  part  of  his  estate,  real  and  personal,  to  his 
eldest  son,  Robert,  afterwards  Earl  of  Belvedere.  The  pro- 
vision for  the  youngest  son,  and  the  other  children,  was  very 
small.  The  estate  left  to  the  eldest  son  was  immense. 

After  the  death  of  George,  the  elder  brother,  whose  income, 
at  that  time,  was  3,800  pounds  sterling  a  year,  refused  pay- 
ment of  principal  or  interest  of  the  mortgage  debt  charged 
on  the  land  devised  to  the  youngest,  brother  ;  and  the  younger 
brother,  being  under  straitened  circumstances,  and  with  an 
increasing  family,  was  unable  to  keep  down  the  interest,  and 
at  last,  in  1739,  the  mortgage  was  foreclosed  ;  but  the  estate, 
by  the  humane  indulgence  of  the  creditor,  was  not  sold  under 
the  decree  until  the  year  1756.  The  younger  brother,  at 
last,  filed  his  bill  against  the  executors  of  his  father,  (of  w«hich 
his  elder  brother  was  one,)  and  of  his  grandfather,  to  have 
[  *  270  ]  the  mortgage  debt  *paid  out  of  the  personal  assets,  in  ease 
of  the  land  devised  to  him.  The  bill  was  originally  filed  in 
1749,  in  the  Court  of  Chancery  in  Ireland,  and  the  final 
decree  was  pronounced  by  Lord  Ch.  Lifford,  in  1770. 

The  lord  chancellor  decreed,  that  the  mortgage  debt  was  to 
be  considered  the  debt  of  Lord  Rochfort,  the  grandfather,  al 
the  time  of  his  death ;  and  that  his  personal  estate,  in  the 
hands  of  his  son  and  heir,  George,  and  which  since  came  to 
the  hands  of  his  grandson,  Robert,  Earl  of  Belvedere,  was 
liable  to  the  payment  of  that  debt,  in  exoneration  of  the  real 
estnte  devised  to  William,  the  plaintiff. 

This  decree  was  affirmed,  on  appeal,  by  the  House  of 
Lords. 

The  simple  narration  of  this  case  is  exceedingly  calcu- 
lated to  enlist  the  feelings  in  favor  of  the  decree ;  and  every 
person  would  naturally  be  tempted,  by  the  interest  and  pathos 
of  the  story,  to  press  every  circumstance  to  the  greatest 
extent  for  the  relief  of  the  younger  brother.  But  hard  cases 
often  make  bad  precedents,  and  it  is  certain  that  this  case 
has  never  since  been  regarded  as  a  safe  and  sound  authority. 
Lord  Thurlow  rejected  it,  though  he  was  one  of  the  counsel 
for  the  respondents  upon  the  appeal.  Lord  Alvanlcy  says, 
there  are  many  difficulties  occurring  against  the  judgment, 
208 


CASES  IN  CHANCERY.  2"JO 

and  he  does  not  rely  upon  it;  and  Lord  Eldon  and  Sir  IVm.        1817. 
Grant  take  no  notice  of  it  in  their  criticisms  and  discussions   \^X-~N/-**_^ 
on  this  much  agitated  subject.  CUMBERLAND 

It  is  impossible  to  know  upon  what  precise  grounds  the 
decree  was  placed  by  the  House  of  Lords.  The  counsel  for 
the  respondents  relied  upon  the  fact  contained  in  the  deed 
of  the  purchase  of  the  equity  of  redemption  by  Lord  Roch- 
fort,  that  the  mortgage  debt  was  expressly  ascertained,  and 
set  apart,  and  left  in  the  hands  of  the  purchaser,  to  be  by 
him  paid  to  the  mortgagee.  Lord  Lifford  seems  to  have 
considered  this  fact  as  decisive  evidence,  that  Lord  *Rochfort  [  *  27]  ] 
made  the  debt  his  own  personal  debt,  and  this,  probably, 
was  the  ground  of  his  decree.  If  it  was  considered  that  an 
action  of  law  might  have  been  brought  by  the  mortgagee 
upon  the  affirmance  of  this  trust,  then  the  case  would  corne 
directly  within  the  principle  of  Tweddell  v.  Twedddl.  But 
the  counsel  for  the  respondents  urged  other  reasons,  founded 
on  the  will  of  the  original  purchaser,  as  if  he  had  there  made 
the  debt  chargeable  on  his  personal  assets.  If  that  was  the 
fact,  then  the  case  fell  within  the  decisions  in  Pocklcy  v. 
Pockley,  and  of  numerous  other  cases  to  the  same  purpose. 
There  is  strong  ground  for  this  construction,  as  the  testator 
gave  the  mortgaged  premises  to  his  wife  for  life,  free  of  this 
encumbrance ;  and  he  directed  his  son  and  executor  to  pay 
the  interest  of  that  debt  out  of  other  lands  devised  to  him. 
If  he  intended,  or  expected,  that  the  mortgage  debt  was  to 
be  paid  in  the  lifetime  of  his  widow,  (and  he  had  no  right  to 
expect  the  contrary,)  then  the  testator  certainly  intended  it 
should  be  paid  out  of  his  personal  estate  ;  and  this  conclusion 
is  the  more  inevitable,  since  he  gave  the  residuary  personal 
estate  to  his  son,  after  the  payment  of  all  his  just  debts. 

But  the  counsel  for  the  respondents  urged  other  grounds, 
also,  in  favor  of  the  decree.  They  urged  the  will  of  George 
Rochfort,  the  son,  (and  father  of  the  parties  to  the  suit,)  as 
decisive  evidence  of  his  intention,  also,  that  the  mortgage 
debt  was  to  be  paid  out  of  the  personal  assets  of  his  father 
or  of  his  own.  He  gave  specific  estates  to  his  other  younger 
sons,  and  gave  the  rents  and  profits  of  certain  lands,  in- 
cluding the  premises,  for  the  maintenance  of  his  younger 
sons,  until  they  were  25,  and  he  then  gave  the  mortgaged 
premises,  and  them  only,  to  his  youngest  son.  He  must 
have  intended  it  as  a  beneficial  devise,  and  which  could  not 
be  the  case  with  the  encumbrance  upon  it ;  for  that  eventually 
swallowed  it  up. 

Which  of  these  grounds  were  taken  by  the  Court  in  the 
last  resort,  whether  it  was  the  original  agreement  at  the 
*lime  of  the  purchase,  or  the  will  of  the  grandfather,  or  the  £  *  272  ] 

VOL.  III.  27  209 


272  CASES  IN  CHANCERY. 


1817.       W'H  °f  the  father,  cannot  be  ascertained.     We  have  not  the 

v^^-s^-^^x  reasons  either  of  Lord  Ch.  Lifford,  or  of  the  Court  of  Ap- 

CUMBERLAND  peals  ;   and  the  case  may  perhaps  be  considered  as  turning 

CODRINGTON    uP°n  the  construction  of  a  will,  and  its  very  special  provisions. 

A  case    so    peculiar,  and  so  destitute  of  precision,  cannot 

surely  be  received  as  an  authority  here,  when  it  is  no  longer 

regarded  as  such  by  the  tribunals  of  the  country  in  which  it 

was  pronounced. 

The  result  of  the  cases  seems  to  be,  that  as  to  wills,  the 

The  purcha-  testator  may,  by  express  directions,  charge  such  an  encum- 

•Sfec^onTm^s  brance  upon  his  personal  assets,  or,  even  without  express 

will,  may  throw  words,  he  may  do  it  by  dispositions  and  language  that  are 

brance  u^wohe  tantamount  ;  as  if,  for  instance,  the  continuance  of  the  charge 

personal  assets,  primarily  on  the  land  would  be  repugnant  to  some  of  the 

'  Jiya  djsposi-  provisions  jn  the  will,  and  defeat  them.     As  to  other  acts  of 

llOIlS      (111  1.1     13,11-     *  .,...,,.• 

guage  equiva-  the  purchaser  in  his  lifetime,  in  order  to  charge  his  personal 
press  Direction"  estate  as  the  primary  fund,  he  must  make  himself,  by  contract, 
personally  and  directly  liable  at  law  for  the  debt  to  the  owner 
of  the  encumbrance  ;  and  even  a  covenant  or  bond  for  the 
purpose  will  not  be  sufficient,  unless  accompanied  with 
circumstances  showing  a  decided  intention  to  make  thereby 
the  debt  personally  his  own. 

There  is,  then,  no  pretence,  on  any  ground,  or,  indeed, 
from  any  case,  to  charge  the  personal  assets  of  the  estate  of 
Sir  W.  P.  with  the  mortgage  debt.  He  died  intestate,  and 
the  Countess  of  Bath  succeeded  to  his  whole  estate,  real  and 
personal,  as  his  only  child. 

The  next  question  is,  whether  the  personal  estate  of  the 
Countess  of  Bath  is  to  be  charged  with  this  debt,  or  whether 
it  must  not  be  left  as  primarily  chargeable  upon  the  land 
which  descended  to  her  heir  at  law. 

In  my  opinion,  there  is  as  little  ground  in  this  case,  as  in  the 

other,  to  shift  the  charge  from  the  real  to  the  personal  estate. 

[  *  273  ]  *The  will  of  the  Countess  of  Bath  does  not  touch  the 

case  ;    and  the  inquiry  is,  Did  her  acts  in  her  lifetime  create 

the  charge  on  her  personally? 

I  do  not  perceive  a  single  act  of  hers  creating  any  respon- 
sibility from  her  to  the  owner  of  the  mortgage  debt.  She 
wished  to  pursue  the  course  marked  out  by  her  father,  and 
to  make  her  American  estates  exonerate  themselves,  by  the 
progressive  sales,  from  the  debts  charged  upon  them.  She 
seems  to  have  acquiesced  in  the  acts  of  her  agent,  in  keeping 
down  the  interest  of  the  debt  in  question  ;  but  what  is  thaC 
to  the  point  ?  She  owned  all  the  funds,  both  real  and  per- 
sonal, and  her  property  was  liable,  according  to  the  nature 
of  the  charges,  for  all  the  debts  :  no  inference  can  be  drawn, 
one  way  or  the  other,  as  to  the  matter  before  us,  from  hei 
210 


CASES  IN  CHANCERY.  273 

general  desire  to  discharge  all  the  debts  upon  her  estates.        1817. 
The  cases  I  have  been  reviewing  require  some  decided  and   ^^~^~*^ 
marked  act  of  assumption  of  the  very  debt  in  question,  by  CUMBERLAND 
making  it  a  debt  of  primary  personal  obligation.     The  only 
communication  from  her,  or  act  of  hers,  on  this  subject,  is 
her  letter  to  Mr.  Troup,  of  the  15th  of  February,  1806.     But 
that  letter  is  not  to  the  owner  of  the  mortgage.     It  is  di- 
rected to    her    agent,  and  contains   nothing   more    than  an 
anxious  inquiry  as  to  the  competency  of  her  American  funds 
to  meet  the  debt.     The  letter  bound  her  to  nothing :  it  is 
not  so  strong  an  act  as  the  covenant  of  indemnity  entered 
into  by  her  father.     When  Mr.  Troup  afterwards  made  an 
agreement  with   Mrs.  Foster,  as  owner  of  the  mortgage,  to 
pay  the  same,  in  consideration  of  forbearance  to  prosecute, 
"out  of  the  proceeds  of  the  Pultcncy  estates  under  his  ad- 
ministration and  agency,"  he  did  an  act  for  which  no  authority 
is  to  be  found  in  the  case.     In  his  capacity  of  administrator     An  executor, 
of  Sir  W.  P.,  he  had  no  authority  to  bind  his  personal  assets,  °0rr,  c^inloTbhTd 
for  a  debt  not  chargeable  upon  them  before  ;  and  as  general  the  personal  as 
agent  for  the  Countess  of  *Bath,  he  was  not  authorized  to  sets'r  #"0741 
bind  her  personally  for  a  debt  chargeable  only  on  the  land  not  chargeable 
descended  to  her  as  heir.  "Pon  them  be- 

lt would  be  dangerous   to  the  relation  of  principal  and   °A'     general 
agent   to  infer  such  authority  from  loose   general  circum-  a£ent,     cannot 

.I'ui        r      xU  bind  his  princi- 

stances,  susceptible  01  other  constructions.  pai  personally 

Even  if  the  personal  estate  of  Sir  W.  P.  had  been  bound  f(Jr  ^  a     debi 
for  the  debt,  that  fact  would  not  have  bound  the  personal  the^iand6  cie'- 
cstate  of  his  daughter,  after  a  second  descent  cast,  because  scenJed  to  hi* 
it  was  never  her  personal  contract.     This   was  so  said  in  p 
Cope  v.  Cope,  (2  SafJc.  449.)  and  by  Lord  Eld  on,  in  Waring 
v.  Ward,  (1  Vesey,  336.) 

Upon  the  whole,  there  appears  to  be  less  colorable  ground 
for  charging  the  personal  estate  of  the  Countess  of  B.  than 
for  charging  that  of  her  father ;  and  my  conclusion  from  the 
whole  case  is,  that  the  bill  must  be  dismissed. 

The  following  decree  was  entered:  "This  cause  having 
been  submitted  upon  a  case  agreed  to  by  the  parties,  and 
upon  the  arguments  of  counsel  thereon,  as  well  on  the  part 
of  the  defendants  as  of  the  complainants,  and  due  deliber- 
ation being  thereupon  had,  and  it  appearing  that  the  com- 
plainants are  not  entitled  to  the  personal  estate,  either  of  the 
late  Sir  Wm.  Pultency,  or  of  the  late  Countess  of  Bath,  in  the 
pleadings  mentioned,  in  exoneration  of  the  land  from  the  mort- 
gage debt  in  question  :  It  is  thereupon  ordered,  &c.,  that  the 
complainants'  bill  be  dismissed,  and  that  no  costs  be  charged 
by  either  party  as  against  the  other." 

Bill  dismissed. 

211 


275*  CASES  IN  CHANCERY 

1819. 

~s 

others   against   WHEELER   ana 
others. 

WHEELER. 

A  judgment  creditor,  other  than  the  mortgagee,  may  sell  the  equity  ol 
redemption  on  execution. 

Though  a  judgment  at  law  may  be  impeached,  in  this  Court,  for  fraud, 
yet  this  Court  will  never  interfere  with  a  judgment  at  law  on  tlwj 
ground  of  irregularity ;  but  the  record  of  the  judgment,  and  exe- 
cution and  title  under  them,  are  a  conclusive  bar  in  equity.  It  be- 
longs to  the  Court  of  law,  exclusively,  to  inquire  into  the  regularity  of 
its  judgment. 

It  seems  that  a  Court  of  law  will  not  set  aside  a  judgment,  after  a  lapse 
of  20  years,  on  the  ground  of  irregularity. 

Nov.  12  and  THE  amended  bill,  filed  the  16th  of  August,  1814,  stated, 
it'  C81i8i8and  among  other  things,  that  Abraham  Skinner,  on  the  Sth  of 
May,  1783,  executed  a  mortgage  of  a  farm,  of  which  he  was 
then  seised,  in  Amejiia,  in  Dutchess  county,  to  Joel  Harvey, 
jun.,  to  secure  the  payment  of  certain  bonds.  Part  of  the 
money  was  paid  by  A.  S.,  in  his  lifetime  ;  and  he  continued 
in  possession  of  the  premises  until  the  Sth  of  February,  1787, 
when  he  died, -leaving  six  infant  children,  from  one  to  ten 
years  of  age.  Chauncey  iS.,  a  son,  died  intestate,  in  1805,  leav- 
ing three  children,  plaintiffs.  Joel,  another  son,  died  intestate, 
and  without  issue,  in  181 1  ;  and  Thomas  was  a  lunatic,  and 
his  committee,  with  the  three  daughters  and  their  husbands, 
were,  also,  plaintiffs.  The  heirs  of  A.  S.  remained  in  pos- 
session of  the  premises,  after  his  death,  until  1789,  during 
which  time,  Persis  S,,  his  widow,  had  the  management  of  the 
estate,  as  guardian  to  her  children.  On  the  Sth  of  July,  1789, 
she,  as  widow  and  guardian,  released  53  acres,  part  of  the 
mortgaged  premises,  to  Thomas  Thompson,  who  took  pos- 
session, and  which  has  since  been  held  under  that  release. 
Three  of  the  infant  children  of  A.  S.  continued  to  reside  on 
the  residue  of  the  mortgaged  premises  until  1799.  The 
widow,  who  married  W.  Bishop,  the  10th  of  September,  11 89, 
[  *  276  ]  continued  *to  reside  on  the  residue  of  the  premises,  until 
1799,  when  Noah  Wheeler  took  possession  under  claim  of 
title.  Six  of  the  defendants  have  held  possession  under 
the  persons  who  so  entered,  and  have  received  the  rents  and 
profits,  stated  to  be  of  the  value  of  500  dollars  per  annum, 
since  1799,  to  the  present  time.  The  bill  charged,  that  they 
committed  waste  on  the  premises.  J.  Harvey,  the  mortgagee, 
died  about  the  10th  of  December,  1795,  and  his  executors 
were  made  defendants.  Thomas  Thompson  died  in  1795, 
intestate,  and  his  administrators  were,  also,  defendants. 

The  bill  further  stated,  that  the  defendants  denied  the  right 
212 


CASES  IN  CHANCEP.Y. 


276 


i)f  the  plaintiffs  to  redeem,  asserting  their  title,  &c.    Prayer,        1818. 
that  the  defendants  may  account  for  the  rents  and  profits,  and 
waste  committed,  and  that  the  plaintiffs  may  be  let   in   to 
redeem,  &c. 

The  answer  of  the  defendants  stated,  that  Joel  Harvey  WHEELER 
gave  one  of  the  bonds  of  A.  Skinner  to  his  son-in-law  Thom- 
as Thompson ;  and  to  secure  the  payment  of  it,  A.  S.}  on 
the  8th  of  March,  1786,  gave  to  T.  T.  a  judgment  bond  for 
226  pounds,  payable  the  1st  of  October.  The  plaintiffs  alleged 
that  A.  S.  was  insane  when  he  gave  the  judgment  bond ; 
but  this  was  denied  by  the  answer.  On  the  llth  of  April, 
1 787,  judgment  was  entered  up  on  the  bond,  for  452  pounds 
debt,  and  ll.  3s.  6d.  costs,  on  which  a  fi.  fa.  was  issued,  re- 
turnable in  April  term  following,  which  was  returned  by  the 
sheriff,  endorsed,  "  I  have  levied  to  the  value  of  5  pounds,  and 
not  sold;  for  want  of  buyers  ;  which  execution,  the  defend- 
ants stated,  was  actually  levied  on  the  mortgaged  premises. 
On  the  28th  of  April,  1787,  a  writ  of  venditioni  exponas  was 
issued,  reciting  the  fi.  fa.,  return,  &c.,  which 'writ  was  made 
returnable  on  the  last  Tuesday  of  July  :  That  the  sheriff, 
for  want  of  goods  and  chattels,  sold  all  the  right  of  A.  Skin- 
ner in  the  mortgaged  premises,  to  208  acres  and  three  quar- 
ters, for  23  pounds,  and  to  54  acres,  for  71  pounds;  and  on 
the  *3d  of  December,  1787,  the  sheriff  executed  a  deed  to  [  *  277  ] 
T.  T.,  set  forth  in  the  answer,  and  which  recited  the  Ji.  fa., 
its  return,  &c.,  the  venditioni  exponas,  &c.,  by  virtue  of  which 
he  sold  the  land  on  the  20th  of  July  to  T.  T.  as  the  highest 
bidder :  this  deed  also  recited  the  mortgage  by  A.  S.  to  Har- 
vey, and  that  he  had  afterwards  released  the  54  acres  to  A,  S. 
The  defendants  insisted,  that  by  the  sheriff's  sale,  the  equity 
of  redemption  passed  to  T.  T.,  and  that  whether  the  judg- 
ment and  execution  were  irregular  or  erroneous,  were  ques- 
tions of  law  exclusively,  and  to  be  determined  by  the  Supreme 
Court,  in  which  the  judgment  was  rendered.  That  the 
plaintiffs  had  applied  to  the  Supreme  Court  to  set  aside  the 
judgment  and  execution  for  irregularity,  on  the  grounds 
stated  in  their  bill,  which  was  refused.  The  defendants  dis- 
claimei  all  title  to  53  acres ;  and  they  stated,  further,  tha*t,  in 
1795,  the  executors  of  Joel  Harvey,  jun.,  filed  a  bill  in  this 
Court  against  Thomas  Thompson  to  foreclose  the  equity  of  re- 
demption; and  that,  prior  to  the  28th  of  July,  1795,  a  decree 
was  passed  for  the  sale  of  the  mortgaged  premises,  except 
the  53  acres ;  and  that,  on  the  28th  of  July,  1795,  a  venditioni 
exponas  issued  to  the  sheriff,  to  sell  the  mortgaged  premises, 
which  were  sold  on  the  15th  of  October,  1795,  at  auction,  for 
100  pounds,  except  the  53  acres,  to  R.  De  Cantillon,  to  whom 
E  deed  was  executed,  which  was  set  forth  in  the  answer. 

213 


277 


CASES  IN  CHANCERY. 


1818.  That  Harvey  assigned  one  of  the  bonds  to  E.  D.,  defendant 
another  to  R.  De  Cantillon,  and  another  to  James  S.  Smitht 
who,  on  the  15th  of  September,  1796,  purchased  the  widow'u 
right  of  dower,  and  all  other  right  under  T.  Thompson ;  and 
WHEELER,  on  the  17th  of  June,  1797,  they  sold  209  acres  to  the  defend- 
ant, N.  Wheeler,  for  2,500  dollars,  who  occupied  the  same 
until  July,  1813,  when  he  conveyed  the  same  to  his  three 
sons,  defendants. 

John  Lloyd,  a  witness,  aged  81  years,  testified,  that  he 
was  the  deputy  sheriff,  who  received  the  execution  and  the 
f  *  278  ]  *venditioni  exponas ;  that  he  did  not  sell  the  real  estate  of 
A.  S.,  there  being  goods  enough  to  satisfy  the  execution. 

It  appeared  that  A.  S.  died  in  February,  1787,  and  that 
judgment  was  not  entered  on  the  bond  and  warrant  until 
the  12th  of  April  following;  and  the  plaintiff  insisted  that 
the  judgment  was  therefore  void,  and  no  lien  on  the  equity  of 
redemption  ;  that  the  execution  was  not  pursuant  to  the  form 
prescribed  by  the  7th  section  of  the  act  of  the  19th  of  March, 
1787,  and  was  void,  and  gave  the  sheriff  no  authority  to 
sell;  that  the  plaintiff  did  not  levy  on  the  premises  before  the 
return  day  of  the  execution,  nor  did  he  return  that  he  had 
levied  on  any  lands,  &c.  That  no  such  writ  of  fi.  fa.  had 
issued  as  was  mentioned  in  the  venditioni  exponas,  and  that 
the  vend.  exp.  was  issued  and  tested  after  the  death  of  A.  S., 
and  did  not  conform  to  the  statute ;  and  that  for  these 
reasons  the  sale  was  void. 

The  cause  was  brought  to  a  hearing  on  the  12th  of  No- 
vember last. 

Cady,  for  the  plaintiff. 
P.  Ruggles,  contra. 

Jin.  6, 1818.  THE  CHANCELLOR.  This  is  a  bill  filed  by  the  hei;s  of 
Abraham  Skinner,  a  mortgagor,  to  redeem. 

The  defendants  have  raised  several  objections  in  bar  of  the 
demand. 

The  first,  and  perhaps  the  only  objection  which  it  will  be 
requisite  to  consider,  is  the  sale  of  the  equity  of  redemption 
under  a  judgment  and  execution  at  law  against  Skinner,  in 
favor  of  Thomas  Thompson.  The  equity  of  redemption  in 
the  mortgaged  premises  was  purchased  at  such  sale  by 
Thompson,  and  the  premises  are  now  held,  partly  under 
deeds  from  him,  and  partly  under  a  foreclosure  of  the  mort- 
[  *  279  ]  ga§ej  and  a  sale  under  a  decree  of  this  *Court  against 
Thompson,  in  whom  the  equity  of  redemption  resided. 

The  defendants  have  given  in  evidence  the  judgment  ir 
214 


CASES  IN  CHANCERY. 


279 


the  Supreme  Court,  entered  by  confession,  as   of  January        1818. 
term,   1787,  against  Skinner,  in  favor  of    Thompson,  and  a 
sheriff's  sale  by  execution,  under  that  judgment,  of  all  the 
mortgaged  premises,  in  July,  1737,  and  a  sheriff's  deed    to 
Thompson,  the  purchaser,  of  the  date  of  the  3d  of  Decem-     \VHEELKR. 
her,  1787. 

Unless  the  plaintiffs  can  avoid  the  force  and  effect  of 
that  judgment,  execution,  and  sale,  there  is  an  end  of  their 
claim. 

It  is  not  to  be  made  a  question,  whether  a  judgment  cred- 
itor, other  than  the  mortgagee,  may  not  sell  the  equity  of  re- 
demption, on  execution  at  lav/.  The  validity  of  such  a  sale 
has  received  a  sanction  in  our  Courts  that  is  not  now  to  be 
shaken.  But  the  counsel  for  the  plaintiffs  has  undertaken  to 
show,  that  the  judgment,  and  the  proceedings  under  it,  were 
irregular  and  void.  He  has  detected  so  much  apparent  irreg- 
ularity, that,  probably,  he  might  have  succeeded  in  an  appli- 
cation to  the  Supreme  Court,  if  he  had  made  it  in  due  time. 
The  application  was,  indeed,  made  in  February  term,  1811, 
(7  Johns.  Rep.  556.)  upon  affidavits,  disclosing  all  the  facts 
upon  which  the  judgment  and  the  proceedings  under  it  are 
now  assailed.  I  remember  the  case ;  and  I  remember,  also, 
the  decision  which,  in  the  name  of  the  Court,  I  pronounced 
in  the  cause,  "  that  after  the  lapse  of  20  years,  no  judicial 
proceeding  whatever  ought  to  be  set  aside  for  irregularity." 

I  am  now  called  upon,  sitting  in  this  Court,  to  do  the  same 
thing,  in  effect,  by  disregarding  the  title  under  the  judgment, 
and  letting  in  the  plaintiffs  to  redeem.  It  is  now  upwards 
of  thirty  years  since  that  judgment  was  rendered,  and  sale 
made ;  and  the  force  of  the  application  is  not  only  still  fur- 
ther weakened  by  time,  but  is  also  made  to  a  tribunal  which 
has  no  jurisdiction  over  the  question  of  irregularity  *in  a  [  *  280  ] 
judgment  at  law.  The  difficulty  is  truly  stated  in  the  answers 
of  the  defendants,  that  "  whether  the  judgment  and  execution 
are  irregular  or  erroneous,  are  questions  exclusively  at  law." 
As  long  as  the  judgment  and  execution  remain  in  force,  and 
are  not  set  aside  at  law,  they  must  be  received  in  this  Court 
as  of  legal  validity. 

A  judgment  at  law  may  be  impeached  in  this  Court  for 
fraud ;  but  there  is  no  case  in  which  equity  has  ever  under- 
taken to  question  a  judgment  for  irregularity.  The  power 
of  a  Court  of  law  is  always  exercised,  in  such  cases,  in  sound 
discretion  ;  and  the  relief  is  frequently  granted  upon  terms. 
This  Court  cannot  impose  any  such  terms,  or  take  any  sur> 
cognizance  of  the  case  ;  and  the  title  set  up  under  the  judg- 
ment and  execution  must  be  received  here  as  a  conclusive 
bar.  The  case  of  Baker  v.  Morgan,  (2  Doiv's  Rep.  526.) 

215 


CASES  IN  CHANCERY. 


Z5HOTTEN- 
KIKK 


1813.  decided  in  the  English  House  of  Lords,  in  1814,  lays  down 
the  same  rule ;  and  the  doctrine  coming  from  such  masters 
of  equity  as  Lord  Redcsdale  and  Lord  Elclon,  is  undoubtedly 
to  be  considered  as  correctly  declared.  If  there  had  been 

WHEELER,  any  case  warranting  the  interference  of  chancery  with  an  ir- 
regular judgment,  they  would  have  known  it.  In  that  case, 
a  recovery  in  ejectment  was  impeached  after  the  lapse  of  25 
years,  as  null  and  void,  on  the  ground  of  irregularity  ;  and  it 
was  declared  by  them,,  that  they  had  never  heard  before  of 
equity  trying  a  proceeding  at  law  for  irregularity.  Lord  El- 
don  said,  "  he  could  not  imagine  how,  upon  a  bill  filed  in 
1806,  equity  ought  to  trust  itself  to  examine,  as  the  ground 
of  decree,  whether  a  judgment  in  1781  was  regularly  ob- 
tained." 

If  the  judgment  and  execution  cannot  be  set  aside,  or 
questioned,  on  the  gcound  of  irregularity,  we  surely  cannot 
now  go  into  parol  proof,  upon  this  case,  whether  there  was  a 
sale  of  the  mortgaged  premises.  We  have  the  sheriff's  re- 

*  281  ]  turn  to  the  venditioni  ex-ponas,  that  he  had  sold  of  *the  goods 
and  chattels,  lands  and  tenements,  of  Abraham  Skinner,  to 
1151.  3s.,  and  that  he  had  no  more  property  in  his  bailiwick 
whereon  he  could  levy  the  residue  of  the  debt.  That  vendi- 
tioni exponas  recited,  in  form,  and  in  extenso,  the  return  en- 
dorsed on  the  previous  Ji.  fa.,  by  which  it  appears,  that  the 
sheriff  had  levied  on  the  goods  and  chattels,  lands  and  tene- 
ments, and  that  they  remained  unsold  for  want  of  buyers. 
We  have,  lastly,  the  sheriff's  deed  of  December,  1787,  reciting 
the  process  of  execution,  the  seizure  or  levy,  the  return,  and 
the  subsequent  process  and  sale,  on  the  20th  of  July,  1787, 
of  the  mortgaged  premises  to  Thomas  Tlwmpson.  After  such 
official  and  authoritative  documents,  can  we  now  listen  to 
the  deposition  of  a  former  deputy  of  the  sheriff,  who  is  up- 
wards of  80  years  of  age,  and  who  undertakes  to  say,  from 
memory,  that  the  goods  and  chattels  of  Skinner  were  sold 
under  the  execution  and  judgment,  but  not  the  lands  and 
tenements?  It  would  be  impossible  to  suggest  testimony 
more  dangerous  in  itself,  more  contrary  to  rule,  and  more 
palpably  inadmissible. 

I  am,  accordingly,  of  opinion,  that  the  plaintiff's  bill  be 
dismissed,  with  costs. 

Bill  dismissed. 
216 


CASES  IN  CHANCERY. 


*A.  VAN  BERGEN  against  H.  VAN  BERGEN. 

[Followed,  Hopk.  419.] 

A.  Court  of  chancery  does  not  interfere  to  prevent  or  remove  a  private 
nuisance,  unless  it  has  been  erected  to  the  annoyance  of  the  right  of 
another,  long  previously  enjoyed.  It  must  be  a  case  of  strong  and 
imperious  necessity,  or  the  right  previously  established  at  law,  before 
the  party  is  entitled  to  the  aid  of  this  Court. 

Though  a  person  has  a  right  to  erect  a  mill  where  he  pleases  on  his  own 
ground,  yet  he  must  so  exercise  that  right  as  not  to  interfere  with  the 
existing  rights  of  others.  If  Jl.  erects  a  new  mill  in  such  a  place,  or 
so  near  the  mill  of  B.,  that  an  artificial  dam,  before  erected  by  B., 
causes  the  water  to  flow  back  on  A?s  mill  and  obstruct  its  movement, 
it  seems  that  Jl.  has  no  right  to  complain  of  the  dam  of  B.  as  a 
nuisance. 

BILL  filed,  December  5th,  1816.  It  stated  that  the  plain-  NOV.  n  and 
tiff  being  seised,  as  tenant  in  common  with  the  defendant,  ^  *817>  ^ 
of  about  six  acres  and  a  half  of  land,  and  two  certain  falls  of 
water  and  mill-seats,  including  the  ground  requisite  for  the 
erection  and  convenience  of  mills,  together  with  a  grist-mill, 
erected  on  the  easternmost  or  lower  mill-seat,  on  the  north 
side  of  the  Coxsackie  Creek,  and  the  privilege  of  erecting 
mills,  raceways  and  dams,  on  and  across  the  said  creek,  and 
using  the  water  for  such  purposes,  he,  on  the  8th  of  Decem- 
ber, 1808,  entered  into  an  agreement  with  the  defendant,  for 
a  partition  of  the  premises ;  and  they,  accordingly,  divided 
the  same  into  two  parts,  and  the  westernmost  half  of  the  six 
and  a  half  acres,  together  with  the  upper  fall  and  mill-seat, 
were  set  off  and  released  to  the  plaintiff,  and  the  easternmost 
half,  together  with  the  lower  fall  and  mill-seat,  and  the  grist- 
mill erected  thereon,  to  the  defendant.  That  the  part  of  the 
defendant  being  of  greater  value  than  the  part  of  the  plaintiff, 
the  defendant,  in  consideration  thereof,  agreed  to  convey  to 
him  31  acres  of  land  in  the  Coxsackie  patent. 

That,  in  1809,  the  plaintiff  erected  a  saw-mill  and  dam,  on 
the  creek,  within  his  premises,  and  that  by  reason  of  *its  [  *  283  j 
overflowing  the  lands  of  P.  R.  Vandenbergh  and  others,  he 
was  sued  at  law,  and  a  verdict  recovered  against  him  for  120 
dollars,  (a)  That  the  plaintiff,  afterwards,  removed,  and  re- 
built his  mill  and  mill-dam,  twenty-two  feet  lower  down  on 
the  creek,  within  his  premises.  That  the  defendant,  in  the 
summer  of  1816,  erected  a  dam  three  feet  and  a  half  high, 
on  the  upper  part  of  the  fall  contiguous  to  his  mill,  by  means 
of  which,  he  has  caused  the  water  to  flow  back  and  obstruct 

(a)  Vide  13  Johns.  Rep.  212 

VOL.  III.  28  217 


5283  CASES  IN  CHANCERY. 

1818.  ^e  operation  of  the  plaintiff's  mill.  That  the  fall  of  the  de^ 
*r^^~*^  fendant's  mill  is  twenty  feet  high,  formed  of  rocks,  and  the 
'AN  BERGEN  depth  of  water  at,  and  just  above  the  fall,  in  a  dry  season,  i? 
AN  BERGEN.  no^  ^ess  ^nan  ^  or  ^  feet,  and  the  defendant  can  have  a 
full  supply  of  water  for  his  mill,  without  such  a  dam  as  he 
has  erected,  and  without  obstructing  the  plaintiff's  mill. 
That  the  defendant  had  notice  of  the  plain  tiff' j  intention  to 
remove  his  mill  and  dam,  when  the  defendant  erected  the 
said  dam.  That  the  plaintiff  gave  notice  to  ihe  defendant 
of  the  obstruction  to  the  plaintiff's  mill,  occasioned  by  the 
defendant's  dam,  and  requested  him  to  remove  it,  which  he 
has  refused  to  do.  That  the  injury  occasioned  to  the  plain- 
tiff, by  the  defendant's  dam,  is  permanent,  and  precludes  all 
hope  of  any  adequate  reparation  at  law,  and  must  lead  to 
numerous  lawsuits.  That  the  erection  of  the  said  dam  by 
the  defendant  is  contrary  to  the  intent  and  meaning  of  the 
said  releases  in  partition ;  that  it  impedes  the  use  of  the 
plaintiff's  mill,  and  the  defendant  has  an  abundant  supply  of 
water,  at  all  seasons,  without  any  such  dam,  or  obstructing 
the  plaintiff. 

Prayer,  that  the  defendant  may  be  required,  within  a  rea- 
sonable time,  to  remove  his  said  dam,  and  not  obstruct  the 
operation  of  the  plaintiff's  mill,  by  any  erections  below,  by 
throwing  back  the  water,  &,c. 

The  deed  of  the  defendant  to  the  plaintiff  released  to  him 
the  land,  "  together  with  the  fall  of  water  in  the  said  creek, 
*  284  ]  and  the  privilege  of  the  same,  and  the  free  use  of  *any  mill 
or  mills,  which  may,  hereafter,  be  erected  in  or  upon  the 
said  creek  and  fall  of  water,  so  that  the  parties  of  the  first 
part  (defendant  and  wife)  shall  not  so  raise  the  mill-dam 
now  erected  below  the  said  falls,  as  to  make  the  back  water 
impede  any  mill  which  may  be  erected,  as  aforesaid,  by  the 
plaintiff." 

The  answer  of  the  defendant,  filed  the  1st  of  March,  1817, 
stated,  that  he  was  tenant  in  common  with  the  father  of  the 
plaintiff,  of  the  premises  described  in  the  bill,  and,  in  1804, 
agreed  with  him  to  divide  them,  in  the  manner  described, 
and  under  that  agreement,  the  parties  entered  into  posses- 
sion ol  their  respective  parts  in  severally ;  that  on  the  8th 
of  December,  1808,  to  confirm  that  agreement,  and  carry  it 
into  effect,  the  plaintiff  and  defendant  executed  releases  to 
each  other  for  their  respective  parts.  That  the  grist-mill 
mentioned  was  erected  twenty  years  ago,  by  the  defendant 
and  the  plaintiff's  father,  and  they,  at  the  same  time, 
erected  a  dam  on  the  top  of  the  fall  where  the  dam  is  now 
erected,  of  the  height  of  above  four  feet,  which  continued 
until  1810,  when  it  was  carried  away  by  a  freshet.  That  r 
218 


CASES  IN  CHANCERY.  281 

Ihe  time  the  releases  were  executed,  the  dam  on  the  top  of  1818. 
the  lower  fall  was,  at  least,  three  feet,  and  the  dam  and  mill- 
pond  were,  as  they  had  been  a  long  time  before,  used  as  ap- 
pertaining  to  the  mill.  That  when  the  plaintiff',  in  1809, 
erected  the  saw-mill  and  dam  mentioned  in  his  bill,  the  dam  on 
the  top  of  the  fall,  erected  by  the  defendant  and  the  plaintiff's 
father,  was  remaining  of  the  same  height  as  before  mention- 
ed, and  the  water  then  caused  to  flow  back  and  form  a  pond 
to  the  foot  of  the  upper  fall,  and  upon  part  of  the  bed  of  the 
river  released  to  the  plaintiff's  father.  That  when  the  dam 
of  the  defendant  was  carried  away  by  the  freshet,  one  A.  Van 
Allen  was  tenant  of  the  mill,  &c.,  and  without  the  consent 
of  the  defendant,  erected  another  dam  resting  upon  the  first 
step  of  the  fall,  one  foot  lower  down  the  creek  than  the 
former  dam,  and  raised  about  two  feet  above  the  level  *of  [  *  235 
the  top  of  the  fall ;  and  the  water,  by  that  means,  formed  a 
pond  on  part  of  the  bed  of  the  creek  included  in  the  prem- 
ises of  the  plaintiff.  That  this  last  dam  was  carried  away, 
and  the  defendant,  in  the  autumn  of  1816,  erected  another 
dam  on  the  top  of  the  fall,  where  the  dam  built  by  him  and 
the  plaintiff's  father  originally  stood.  That  the  last  dam 
does  not  raise  the  water  more  than  twelve  inches  above  the 
top  of  the  fall,  and  is  two  feet  lower  than  the  dam  erected 
before,  and  which  stood  there  when  the  partition  was  made. 
That  when  the  defendant  erected  the  last  dam,  he  had  no 
notice  of  the  intention  of  the  plaintiff  to  remove  his  saw-mill 
and  dam  lower  down.  That  when  the  defendant  was  building 
the  last-mentioned  dam,  the  plaintiff  was  informed  of  it,  and 
shown  how  high  it  was  to  be  built,  and  approved  of  it. 

The  defendant  admitted,  that,  by  means  of  the  last-men- 
tioned dam  erected  by  him,  the  water  flows  back  upon  the 
wheel  of  the  plaintiff's  newly-erected  saw-mill,  and  wholly 
impedes  its  operation.  That  the  fall  of  the  defendant  is 
about  20  feet  high,  formed  of  rocks,  making  a  natural  dam 
of  such  a  height  as  to  form  a  basin  of  water  of  considerable 
depth,  a  few  rods  west  of  the  top  of  the  fall,  and  in  some 
places  to  the  depth  of  10  feet,  &.c. 

The  defendant  denied  that  he  had,  at  all  seasons,  an 
abundance  of  water,  without  an  artificial  dam,  or  without 
obstructing  the  operation  of  the  plaintiff's  mill.  That  to  ob- 
tain the  necessary  supply  of  water  for  his  mill,  at  any  season 
<jf  the  year,  an  artificial  dam  is  requisite,  above  the  top  of 
the  fall ;  and  that  without  such  a  dam  of  three  feet  above  the 
top  of  the  fall,  the  defendant  would  not  have  a  sufficient  sup- 
ply of  water  to  his  mill,  for  more  than  four  months  in  the 
year.  That  the  pond  covers  only  one  third  of  an.  acre  ;  and 
the  plaintiff's  mill  stands  so  far  r'own  the  fall,  that  it  would 

219 


236*  CASES  IN  CHANCERY. 

1818.       be  prevented  from  going,  by  the  back  water  of  the  pond, 
^r-^s-^s  formed  by  the  natural  dam  of  the  rock,  without  any  artificial 
VAN  BERGEN   dam.     That  the  plaintiff's  *saw-mill  is  at  the  foot  of  the  fall, 
'*—  BERGEN    an(^  ^e  watei"-wheel  let  into  the  pond,  formed  by  the  natu- 
ral dam.     That  the  plaintiff  insists  that  he  has  a  right  to  set 
his  mill  where  he  pleases  on  his  own  land,  and  that  the  de- 
fendant, by  the  deed  of  release,  is  bound  to  remove  all  ob- 
structions.    That  if  any  of  the  covenants  in  the  deed  have 
been  broken,  the  plaintiff  has  adequate  remedy  at  law. 

The  deed  of  the  defendant  to  the  plaintiff,  dated  December 
8,  1808,  releases  "  the  grist-mill,  and  the  land  thereby  cov- 
ered, and  appertaining,  as  fully  and  amply  as  the  said  mill, 
with  its  appurtenances,  is  now  actually  possessed  by  the  de- 
fendant, by  his  tenant,  Thomas  Palmerter,  and  also  the 
water,  mill-dam,  and  ground,  thereby  covered,  with  all  and 
singular  the  rights,  privileges,  &c.,  and  appurtenances  to  the 
said  mill  belonging."  The  deed,  then,  conveys  three  acres 
and  a  quarter,  by  metes  and  bounds,  and  adds,  "  together 
with  the  use  of  the  water  of  the  said  creek  ;  and,  in  case  any 
mill  or  dam  should  hereafter  be  erected  by  the  plaintiff  above 
the  mill  hereby  released  to  the  defendant,  the  defendant 
shall  have  the  privilege  of  letting  the  water  out  of  such  dam 
for  the  use  of  his  mill  below,  and  hereby  released,  provided 
no  injury  shall  be  done  to  the  mill  or  dam,  so  to  be  erected. 
And  it  shall  not  be  lawful  for  the  plaintiff  to  withhold  the 
water  unnecessarily  from  the  mill  of  the  defendant." 
The  cause  was  heard  in  November  last. 

Van  Vechten,  for  the  plaintiff. 

Van  Buren    (attorney-general)    and   Van  Dyck,  for  the 
defendant. 

January  8.          The  cause  stood  over  for  consideration  to  this  day. 

|  *  287  ]  *THE  CHANCELLOR.     There   are   two   objections   to  the 

plaintiff's  title  to  a  decree,  and  both  of  them  appear  to  be 
well  founded. 

1.  The  remedy  of  the  plaintiff  (if  any)  ought  to  be  sought 
at  law,  by  an  action  on  the  case,  or  by  an  action  upon  the 
covenants  contained  in  his  deed  of  December,  1808.  The 
cases  in  which  chancery  has  interfered  by  injunction,  to  pre- 
vent or  remove  a  private  nuisance,  are  those  in  which  the 
nuisance  has  been  erected  to  the  prejudice  or  annoyance  of 
a  right  which  the  other  party  had  long  previously  enjoyed. 
It  must  be  a  strong  and  mischievous  case  of  pressing  neces- 
sity, or  the  right  must  have  been  previously  established  at  law 
220 


CASES  IN  CHANCERY.  281 

to  entitle  the  party  to  call  to  his  aid  the  jurisdiction  of  this        1818. 
Court.     In  Brown's  case,  (2   Vesey,  414.)  Lord  Hardivicke  <^«*^^-^^/ 
intimated,  that  the  title  must  have  been  established  at  law,  or   VAN  BERGEN 
the  party  have  been  in  the  previous  enjoyment  of  the  subject   VAN  BERGEN. 
for  at  least  three  years,  before  he  would  interpose  by  in- 
junction in  the  case  of  a  private  nuisance.     In  the  case  of 
The  Attorney-General  v.  Nichol,  (16  Vesey,  338.)  Lord  Eldon 
said,  there  were  private  nuisances  which  would  support  an 
action  on  the  case,  but   which  would   not   support  an  in- 
junction.    He  put  the  jurisdiction  of  the  Court  upon  the 
ground  of  material  injury,  and  of  that  special  and  troublesome 
mischief  which  required  a  preventive  remedy,  as  well  as  a 
compensation  in  damages.     I  have  had  occasion  frequently, 
since  I  have  been  sitting  in  this  Court,  to  allude  to  this  very 
doctrine,  and  to  consider  it  as  sound.     (Gardner  v.  Village 
of  Neivburgh,  2  Johns.  Ch.  Rep.  164,  165.  Attorney-General 
v.  Utica  Insurance  Company,  id.  379.) 

When  a  statute  authorizes  commissioners  or  others  to 
interfere  with  private  property,  and  it  is  charged  and  shown 
that  they  are  about  to  exceed  their  powers,  the  case  seems 
not  to  be  governed  by  the  ordinary  rule :  the  interference 
of  the  Court  is  more  prompt,  and  is  called  for  by  *greater  '  [  *  288  J 
necessity.  (Belknap  v.  BelJcnap,  2  Johns.  Ch.  Rep.  463.) 

In  this  case,  the  plaintiff  erected  his  mill  after  the  defendant 
had  erected  his  dam.  It  is  like  the  case  of  a  person  building 
his  house  against  an  ancient  wall,  and  then  complaining  that 
his  windows  are  darkened.  Whether  the  defendant  had  a 
remedy  at  law,  prior  to  the  erection  of  his  present  mill,  for 
the  overflowing  of  his  land,  by  the  means  of  the  dam  in 
question,  it  is  not  for  me  to  say.  But,  perhaps,  he  might 
have  tested  the  legality  of  the  dam  in  that  way,  or,  after  he 
had  erected  his  mill,  he  might,  by  an  action  on  the  covenant 
in  his  deed,  have  tried  the  question.  It  is  a  proper  legal 
question,  and  the  plaintiff  had  his  legal  remedy.  It  does  not 
strike  me  that  he  has  shown  that  species  of  nuisance  required 
by  the  cases,  to  entitle  him  to  call  to  his  assistance  the  power 
of  this  Court. 

But  if  the  merits  of  the  case  were  properly  before  me,  I 
should  consider  the  plaintiff  as  having  failed. 

When  the  parties  executed  their  mutual  releases,  in  De- 
cember, 1808,  there  was  an  artificial  dam  on  the  spot  where 
the  present  dam  stands,  still  higher  than  the  present  dam. 
Of  this  fact  the  proof  is  abundant.  There  has  been  an 
artificial  dam  there  for  upwards  of  20  years,  and  always 
higher  than  the  present  dam.  The  mill  belonging  to  the 
defendant,  and  to  which  this  dam  is  auxiliary  and  necessary, 
is  also  of  long  standing.  All  this  was  known  to  the  parties 

221 


283  CASES  IN  CHANCERY. 

1818.       when  they  released  to  each  other;  yet  the  plaintiff  releases 
v,^»-\/— ^*_x  "  the  grist-mill,  and  the  land  thereby  covered,  and  apper  aining, 
VAN  BERGEN    as  fiu  iy  and  amply  as  the  said  mill,  with  its  appurtenances,  is 
VAN  BERGEN.   now  usually  possessed  by  the  defendant,  by  his  tenant,  and  also 
the  water,  mill-dam,  and  ground  thereby  covered,  with  all  and 
singular   the   rights,  privileges,  fyc.,  unto  the  said  mill  be- 
longing.'1''    It  appears  to  me,  that  by  the  true  and  obvious 
construction  of  this  deed,  the  defendant  is  secured  in  the 
title,  use,  and  enjoyment  of  the  mill,  and  mill-dam,  as  it  then 
[  *  289  ]       existed.     Nor  does  the  ^release  to  the  plaintiff  of  the  land 
and  water,  and  the  waterfall,  further  up  the  creek,  destroy 
the  operation  of  the  deed  to  the  defendant.     They  may  exist 
consistently  together.     The  plaintiff  is  entitled  "  to  the  fall 
of  water  in  the  said  creel:,  and  the  privilege  of  the  water  of 
the  same,  and  the  free  use  of  any  mill  or  mills  which  may 
thereafter  be  erected  upon  the  said  creek  and  fall  of  water; 
and  the  defendant  shall  not  so  raise  the  mill-dam  now  erected 
below  the  said  falls,  as  to  make  back  water  to  impede  any  mill 
which  may  be  erected  by  the  plaintiff."" 

The  prohibition  in  this  deed  is  against  raising  the  mill- 
dam  then  erected.  The  defendant  was  entitled  to  preserve 
the  dam  at  the  then  existing  height,  and  to  enjoy,  unimpaired, 
the  mill,  and  all  its  privileges,  as  it  was  then,  and  for  a  long 
time  had  been  enjoyed.  The  plaintiff  was  entitled  to  build 
what  mills  he  pleased  on  his  own  ground ;  but  then  he  must 
so  exercise  that  right,  as  not  to  interfere  with  the  established 
and  existing  right  of  the  other  party.  He  must  so  construct 
his  mill,  or  erect  it  in  such  a  place,  as  that  he  may  enjoy  it, 
consistently  with  the  defendant's  enjoyment  of  his  dam  and 
water.  If  his  new  mill  is  to  interrupt  the  enjoyment  of  the 
prior  dam  and  mill,  the  proposition  would  be  reversed,  and 
his  erection  would  become  the  nuisance. 

My  opinion,  accordingly,  is,  that  the  plaintiff  has  shown 
no  right  to  sustain  his  bill,  and  that  it  must  be  dismissed 
with  costs. 

Decree  accordingly. 
J22 


CASES  IN  CHANCERY. 


*290 


*WILLIAMSON  against  DALE  and  others. 

[Applied,  Clarke  481;  2  Edvv.  617;  2  Paige  101.] 

The  practice  of  the  English  chancery  of  opening  biddings  at  the  mas- 
ter's sales  has  not  been  adopted  here. 

But  where  the  executors  of  a  mortgagee  were  innocently  misled,  and 
induced  to  believe  that  the  sale  of  the  mortgaged  premises  would  not 
take  place  on  the  day  appointed,  there  being  no  culpable  negligence 
on  their  part,  the  Court,  under  the  circumstances  of  the  case,  ordered 
the  sale  to  be  set  aside,  on  the  ground  of  surprise,  on  the  defendant's 
paying  to  the  purchaser  all  his  costs  and  expenses,  and  the  costs  of  the 
application,  though  the  sale  was  perfectly  regular  and  fair,  and  no  un- 
tuir  intention  was  imputed  to  the  mortgagee  or  his  solicitor. 

PETITION  of  the  defendants,  the  executors  and  infant 
heirs  of  Robert  Fulton,  deceased,  to  set  aside  the  sale  of 
mortgaged  premises,  on  the  ground  of  surprise ;  and  that 
they  be  allowed  to  redeem  the  premises,  on  paying  the  debt 
and  costs  within  a  reasonable  time,  or  that  the  biddings  may 
be  opened,  &c. 

The  material  facts  set  forth  in  the  petition,  and  the  affi- 
davits read  in  support  of  it,  are  stated  in  the  opinion  of 
the  Court. 

The  mortgaged  premises  were  bid  off  at  2,700  dollars, 
subject  to  a  prior  mortgage  for  the  same  amount ;  and  the 
petitioners  stated  the  value  of  the  property  to  be  more  than 
12,000  dollars. 

The  purchaser,  at  the  master's  sale,  opposed  the  application, 
insisting  on  his  purchase. 

J.  V.  Henry,  for  the  petitioners. 
Cowdry,  for  the  purchaser. 

THE  CHANCELLOR.  The  sale  in  this  case  ought  to  be  set 
aside,  on  the  ground  of  surprise.  Here  is  as  yet  no  report 
of  the  sale  by  the  master,  and  no  deed  executed.  *The 
executors  of  Robert  Fulton,  deceased,  were  induced  to  believe 
that  the  sale  would  not  have  been  made  on  the  4th  of  last 
December.  This  belief  was  founded  on  the  representations 
made  to  them,  by  their  agent,  of  conversations  which  he  had 
held  with  the  plaintiff  and  his  solicitor.  Those  conversations 
and  representations  are  verified  by  the  affidavits  of  the  exec- 
utors and  of  the  agent,  and  they  are  not  contradicted.  The 
plaintiff  and  his  solicitor  are  silent. 

It  appears  that  when  the  last  payment  of  300  dollars  was 
<aiade  to  the  plaintiff,  in  October  last,  he  expressed  a  reluc- 

223 


1818. 


WILLIAMSON 


January  9. 


[*291 


291  CASES  IN  CHANCERY. 

1818.  tance  to  receive  it,  as  he  was  not  then  in  want  of  money; 
>>^**^~+>~'  and  he  told  Hoffman,  who  acted  as  agent  for  the  executors, 
WILLIAMSON  "  that  he  would  show  every  reasonable  indulgence  for  the 
DALE  payment  of  what  remained  still  due."  The  agent  understood 
from  this  assurance,  that  the  plaintiff  would  not  compel  a  sale 
of  the  property,  but  would  wait  a  reasonable  time.  It  further 
appears,  that  the  agent  afterwards  called  upon  the  plaintiff's 
solicitor,  and  "  stated  to  him  the  promise  made  by  the  plain- 
tiff, of  not  pressing  the  estate,  and  the  plaintiff's  declaration 
to  him,  that  he  did  not  want  money  at  that  time ;  that  the 
solicitor  replied,  that,  at  all  events,  the  advertisement  for  the 
sale  of  the  property  must  be  continued,  which  would  put  the 
estate  to  considerable  expense,  and  which,  the  agent  said,  the 
estate  would  pay."  The  agent  states  further,  that  the  soli- 
citor said,  he  would  represent  the  conversation  to  the  plaintiff, 
and  "  that  he  had  no  doubt  the  plaintiff  would  be  satisfied 
therewith,  and  consent  that  the  property  should  not  be  sold, 
and  that  he  would  advise  the  plaintiff  to  wait,  and  not  have 
the  property  sold."  These  different  conversations  were  report- 
ed to  the  executors,  and  they  were  induced  to  believe  that  the 
property  would  not  be  sold  ;  and  by  that  means,  they  were  sur- 
prised by  the  sale,  and  were  not  prepared  to  meet  it,  as  they 
otherwise  would  have  done.  Notice  of  the  sale  was,  indeed, 
[  *  292  ]  left  at  the  *agent's  office  the  day  before,  or  on  the  day  of  the 
sale ;  but  he  was  out  of  town,  and  did  not  receive  it  in  time. 
There  is  no  imputation  of  any  unfair  intention  in  the  plain- 
tiff or  the  solicitor,  or  of  any  unfair  conduct  at  the' sale ;  but 
I  think  that,  under  the  circumstances,  the  defendants  were 
innocently  misled,  without  any  culpable  negligence  imputa- 
ble  to  them.  The  sale  ought,  therefore,  to  be  opened  upon 
terms. 

I  wish  it  to  be  distinctly  understood,  that  I  interfere  in  this 
case  on  the  ground  of  surprise,  and  that  I  do  not  lay  any 
stress  upon  the  alleged  inadequacy  of  the  auction  price. 
Such  a  ground  alone,  unattended  with  other  circumstances, 
is  not  sufficient.  (Livingston  v .  Byrne,  11  Johns.  Rep.  566.) 
I  may  add  further,  that  the  surprise  here  is  not  of  the  most 
striking  kind,  and  the  case  for  relief,  on  that  ground,  is  pushed 
to  the  utmost  verge  of  an  admissible  interference. 

The  practice  of  opening  biddings  at  the  master's  sales, 
which  prevails  in  England,  has  not  prevailed  here ;  and  I  do 
not  proceed  in  this  case  upon  the  ground  of  that  practice. 
If  it  ought  to  be  adopted,  this  case  is  not  brought  within  it ; 
for  here  is  no  offer  of  any  specified  advance  price.  The 
Court,  under  that  practice,  require  the  deposit  of  a  reason- 
able advance  on  the  laid,  together  with  the  purchaser's  ex- 
penses. (1  Vesey,  jun.  453.  4  Fesey,  700.  6  Vesey 
224 


CASES  IN  CHANGER*.  292 

466.  51<5.  7  Pesey,420.  8  Vesey,  214.  14  Vesey,  151.  1  Vesey        \Q\=( 
fy  B.  361.  3  Vesey  fy  B.  144.)     From  what  fell  from  Lord  ^^-^ 
Eldon,  in  White\.  Wilson,  (14  Vesey,  151.)  it  is  questionable,    WILLIAMSON 
whether  the  practice  of  opening  biddings  as  freely  as  they  do        DA^*. 
in  England  be  not   productive  of  more  injury  than  good. 
He  says,  that  "  half  the  estates  that  are  sold  in  the  Court  are 
thrown  away  upon  the  speculation,  that  there  will  be  an  op- 
portunity of  purchasing,  afterwards,  by  opening  biddings.1' 
But  here  is  a  surprise,  which  Lord  Eldon  admits  to  be  suffi- 
cient to  open  biddings,  even  after  confirmation  of  the  mas- 
ter's report.    *It  is  a  surprise  "generated  by  the  party's  own       [  *  293  J 
conduct."     It  was  the  language  of  the  plaintiff  and  his  soli- 
citor which  unintentionally  put  the  defendants  off  their  guard, 
and  led  to  a  sale  without  their  expectation  or  knowledge,  and 
contrary  to  their  intention. 

The  purchaser,  who  stands  fair  before  the  Court,  is  entitled 
to  be  paid  his  costs  and  expenses,  to  be  allowed  Jay  a  master, 
on  the  liberal  principle  of  the  allowances  of  costs  between 
solicitor  and  client. 

I  shall,  accordingly,  direct,  that  the  sale  be  set  aside,  on  the 
defendants'  paying,  upon  demand,  the  purchaser's  costs  and 
expenses,  including  the  costs  of  this  application ;  and  that 
the  plaintiff  be  at  liberty  to  cause  the  mortgaged  premises  to 
be  again  exposed  to  sale,  on  giving  the  usual  three  weeks' 
notice  in  one  of  the  daily  papers  in  the  city  of  New-York,  of 
the  time  and  place  of  sale. 

The  following  order  was  entered  :  "  Ordered,  that  the  sale 
be  set  aside,  on  condition  that  the  defendants  pay  to  Elbert 
Anderson,  the  purchaser,  upon  demand,  his  costs  and  ex- 
penses attending  the  purchase,  and  including  his  costs  of  this 
application,  to  be  taxed  upon  the  principle  of  the  allowance 
of  costs  and  expenses  as  between  solicitor  and  client.  And 
it  is  further  ordered,  that  if  the  said  condition  be  complied 
with,  the  plaintiff  be  at  liberty  to  cause  the  mortgaged  prem- 
ises to  be  again  exposed  to  sale  by  a  master,  on  giving  the 
usual  three  weeks'  notice  in  one  of  the  daily  papers  in  the 
city  of  New-York,  of  the  time  and  place  of  sale;  and  that 
the  costs  and  expenses  of  the  former  notice  and  sale  on  the 
part  of  the  plaintiff,  be  included  in  the  expenses  of  the  suit, 
and  be  chargeable,  with  the  other  costs  of  suit,  upon  the 
mortgaged  premises  ;  and  that  a  copy  of  this  order  be  forth- 
with served  on  the  solicitor  for  the  plaintiff,  and  also  on  the 
purchaser,  or  his  counsel." 

VOL.  III.  29  225 


294* 


CASES  IN  CHANCERY. 


1818. 
«*-v-x 
MCCOY 

v. 
PAYNE 


January  20. 


[*295] 

t  Ante,  p.  68. 


*MOODY  against  A  AND  H.  PAYNE. 

Where  the  rule  to  show  cause  why  publication  should  not  pass  hu 
been  enlarged  by  an  order  for  that  purpose,  at  the  instance  of  the  de- 
fendants, and  that  order  has  expired,  publicttion  may  pass  without 
entering  a  further  rule  with  the  register,  as  is  the  practice,  in  ordinary 
cases,  on  the  expiration  of  the  rule  to  show  cause. 

If,  after  publication  has  so  passed,  the  substance  of  the  testimony  taken 
on  a  material  point,  upon  which  further  testimony  is  sought,  has 
been  disclosed  to  the  defendant,  it  is  too  late  to  move  to  open  or  en- 
large the  rule,  on  affidavit. 

MOTION  to  enlarge  the  publication  ;  1.  Because  no  order 
to  pass  publication  had  been  entered ; 

2.  On  affidavits,  that  a  material  witness  resided  at  Detroit, 
and  that  the  defendants  had  not  taken  out  a  commission  in 
season,  for  the  reasons  detailed  in  the  affidavits. 

The  motion  was  opposed  on  the  ground,  1.  That  after 
witnesses  had  been  duly  examined  on  the  part  of  the  plain- 
tiff, a  rule  to  show  cause  why  publication  should  not  pass  had 
been  entered  and  had  expired ;  and  that  before  its  expiration 
publication  had  been  enlarged,  on  the  application  of  the  de- 
fendants, to  a  period  also  expired,  and  publication  had  since 
been  made; 

2.  On  affidavits,  denying  the  merits  of  the  application,  and 
that  the  defendants  had  no  just  cause  or  excuse  for  their 
delay. 

Henry,  for  the  motion. 

Van  Buren,  (attorney-general,)  contra.  He  cited  Wyatfs 
P.  R.  355.  2  Johns.  Ch.  Rep.  432. 

THE  CHANCELLOR  said,  that  after  the  rule  to  show  cause 
why  publication  should  not  pass  had  expired,  the  regular 
practice  would  have  been  to  have  entered  a  rule  with  the 
*register,  that  publication  pass ;  and  so  the  practice  was  un- 
derstood in  Brown  v.  Ricketts.^  But  this  case  formed  an 
exception  to  that  practice.  After  the  rule  was  given  to  pass 
publication,  and  before  it  had  expired,  the  same  was  enlarged 
by  order ;  and  when  the  time  limited  by  the  order  expired, 
publication  passed,  in  consequence  of  that  order,  and  without 
the  necessity  of  a  further  rule.  Such  is  the  practice  laid 
down  in  the  books,  and  which  must  prevail,  in  the  absence  of 
226 


CASES  IN  CHANCERY. 

any  special  provision,  or  any  settled  course  of  practice  to  the 
contrary.     (Wyatfs  P.  R.  355.     1  Harr.  Ch.  Prac.  448.) 

The  plaintiff  was  regular  in  the  course  he  pursued,  and 
the  motion  fails  upon  the  merits.  The  facts  suggested  as  an 
excuse  for  the  defendants'  delay  are  contradicted,  and  they 
are  left  without  any  excuse.  It  also  appeared,  that  the  sub- 
stance of  the  testimony  taken  on  a  material  point,  upon  which 
further  testimony  is  sought,  had  been  disclosed  to  the  defend- 
ants, at  their  request.  The  doctrine  in  Hamersly  v.  Lambert, 
(2  Johns.  Ch.  Rep.  432.)  as  to  opening  and  enlarging  publi- 
cation, applies  to  the  case. 

Motion  denied. 


295 


1818. 

^v'"^ 

YOUNG 
v. 

COOP KB. 


YOUNG  and  Wife  against  COOPER  and  others. 

Under  the  act  for  the  partition  of  lands,  where  the  proceedings  are  hi 
this  Court,  it  is  not  necessaiy  for  the  parties  to  execute  mutual  re- 
leases to  each  other,  according  to  the  partition ;  but  the  final  decree 
of  the  Court,  that  such  "  partition  shall  remain  firm  and  effectual 
forever,"  &c.,  is  sufficient. 

THE  report  of  the  commissioners  assigned  and  empow- 
ered to  make  partition  of  the  real  estate,  in  the  pleadings 
mentioned  in  this  case,  was  read,  filed,  and  confirmed.  *By 
the  report,  and  the  maps  accompanying  it,  it  appeared  that 
the  commissioners  had  made  partition,  and  allotted  and  set 
apart,  to  each  of  the  parties,  by  metes  and  bounds. 

Riggs,  for  the  plaintiffs,  suggested  a  doubt,  whether  it  was 
necessary,  under  our  act,  to  pursue  the  course  of  the  English 
chancery,  by  which  the  parties  were  decreed  to  release  and 
convey  to  each  other,  according  to  the  partition  ;  and  he  re- 
ferred to  2  Sch.  fy  Lef.  372,  as  showing  the  English  rule. 

THE  CHANCELLOR  thought  it  unnecessary,  under  the  17th 
section  of  the  act,  sess.  36.  ch.  100,  which  declares  that  all 
partitions  made  under,  and  in  virtue  of,  proceedings  had  in  the 
Court  of  Chancery,  shall  be  firm  and  effectual  forever ;  and 
that  the  final  decree  of  the  Court  for  or  upon  the  partition, 
&c.,  shall  be  binding  and  conclusive,  as  absolutely  as  if  such 
partition,  &c.  had  been  made  in  a  Court  of  law,  &c."  There 
is  no  doubt  that,  by  the  English  practice,  the  parties  execute 
mutual  conveyances,  settled  by  a  master. 

227 


January  23 

[  *  296 


296  CASES  IN  CHANCERY. 

1818  The  decree,  in  this  case,  therefore,  was,  "  that  the  said  pai- 

v^-^-^,  tition  remain  firm  and  effectual  forever,  and  that  the  said  parties 
MORRIS       respectively  hold  and  enjoy,  in  severalty,  the  said  portions  of 
tne  Premises  set  apart  and  allotted  to  them  as  aforesaid." 


[  *  297  ]      *MORRIS  AND  Mo  WATT,  Assignees  of  C.  SANDS,  against 

S.  D.  PARKER. 

[Applied,  11  Paige  237.    Approved,  3  Edw.  103.     Distinguished,  5  Johns.  Ch.  248;  3 

Paige  107, 116. 

When  a  defendant  answers,  that  he  has  not  any  knowledge  or  informa- 
tion of  a  fact  charged  in  the  plaintiff's  bill,  he  is  not  bound  to  declare 
his  belief  one  way  or  the  other.  It  is  only  when  he  states  a  fact 
upon  information,  or  hearsay,  that  he  is  required  to  state  his  belief  or 
unbelief. 

Where  certain  documents  are  set  forth,  historically,  in  the  stating  part  of 
the  bill,  the  defendant  must  answer  to  the  fact  of  the  existence  of  such 
documents,  according  to  his  knowledge,  or  his  information  and  belief 
He  is  not  bound  to  answer  to  the  facts  contained,  or  stated,  in  such 
documents,  unless  particularly  stated,  distinct  from  the  documents. 

Where  the  defendant  answers,  that  he  "  is  utterly  and  entirely  ignorant " 
as  to  the  fact  to  which  he  is  interrogated,  it  is  sufficient. 

January  23.         ON  appeal  from  the  master's  report,  allowing  exceptions 
to  the  answer  of  the  defendant. 

The  material  facts  charged  in  the  bill,  or  to  which  the  de- 
fendant was  interrogated,  and  his  answer  to  which  was  except- 
ed  to,  as  evasive  and  unsatisfactory,  are  sufficiently  stated 
by  the  Court. 

Rtggs,  for  the  plaintiffs. 
T.  Sedgwick,  -contra. 

THE  CHANCELLOR.  The  first  exception  to  the  answer  is, 
that  the  bill  having  set  forth  a  certain  petition  to  have  been 
presented  to  the  Circuit  Court  of  the  United  States,  for  the 
district  of  New-York,  by  James  Bingham  and  Benjamin 
Stokes,  as  assignees  of  John  Jones  Waldo,  a  bankrupt,  and 
the  contents  of  the  said  petition  ;  the  defendant,  in  answer 
to  that  part  of  the  bill,  said  he  had  not  any  "  knowledge  or 
information  "  as  to  the  truth  or  falsehood  of  the  several  alle- 
[  *  298  ]  gations  charged  to  have  been  contained  in  that  *petition,  with- 
out stating  what  his  belief  was  concerning  the  same. 

It  is  not  necessary  even  to  look  into  the  bill  and  answer,  to 
pronounce  this  exception  unfounded.  It  appears,  upon  the 
228 


CASES  IN  CHANCERY.  298 

very  face  of  it,  not  to  have  been  well  taken.  When  a  de-  1818. 
fendant  answers,  that  he  has  not  any  knowledge  or  informa-  ^^-^s~*+^ 
tion  of  a  fact  charged,  he  answers  sufficiently,  and  is  not  MORRIS 
bound  to  declare  his  belief.  He  is  not  to  be  supposed  to  pARVKKR 
have  any  belief,  one  way  or  the  other.  The  rule  requiring  a 
defendant  to  state  his  belief,  is  when  he  states  a  fact  upon 
information  or  hearsay.  In  such  case,  he  must  add  his  belief, 
or  unbelief,  of  the  report  or  information.  But  when  he  has 
neither  knowledge  nor  information  as  to  facts  stated  by  the 
plaintiff,  he  is  not  bound  to  say  more.  It  would  be  very  un- 
reasonable to  compel  a  defendant,  who  knows  nothing,  and 
has  heard  nothing  on  the  subject,  except  from  the  plaintiff's 
bill,  to  declare  what  his  opinion  or  belief  is  of  the  plaintiff's 
veracity.  It  is  sufficient  for  him  to  say,  that  he  does  not 
know,  nor  has  he  heard  or  been  informed  of,  the  facts  charged  in 
the  bill,  save  by  the  bill  itself;  and  that  he,  thereupon,  leaves  the 
plaintiff  to  make  proof  of  these  charges  as  he  shall  be  advised. 
This  exception  is  not  well  taken  in  another  point  of  view, 
and  one  which  was  urged  by  the  counsel  for  the  defendant. 
The  petition  mentioned  in  the  exception  is  set  forth  in  the 
stating  part  of  the  bill  as  one  of  the  facts  composing  the  his- 
tory of  the  plaintiff's  case.  The  contents  of  the  petition  are 
hot  stated  as  distinct,  independent  facts  ;  but  it  is  stated,  that 
Bingham  and  *SifoA:es  presented-  a  petition  to  the  Circuit 
Court,  containing  such  and  such  allegations.  The  exhibition 
of  the  petition  is  the  only  fact  properly  stated ;  and  all  that  the 
defendant  could  be  called  on  to  answer  was,  whether  such  a 
petition,  with  such  contents,  was  not  presented.  He  was  not 
bound  to  answer  to  every  fact  stated  in  that  petition,  any 
more  than  he  was  bound  to  *answer  to  every  fact  contained  [  *  299  j 
in  the  act  of  Congress,  which  is  also  set  forth,  at  large,  in  the 
bill,  or  to  answer  to  every  allegation  contained  in  the  answer 
of  Bingham  and  Stokes,  to  the  bill  filed  against  them  in  the 
Circuit  Court,  which  answer  is,  also,  substantially  set  forth  in 
the  bill,  in  this  case.  The  petition,  the  act  of  Congress,  and 
the  answer  of  Bingham  and  Stokes,  are  all  set  forth,  histor- 
ically, as  matters  of  fact,  in  the  stating  part  of  the  bill :  the 
defendant  was  bound  to  answer  to  the  fact  of  the  existence 
of  such  documents,  according  to  his  knowledge,  if  he  had 
any;  if  not,  then  according  to  his  information  and  belief ; 
and  if  he  had  neither  knowledge  nor  information,  he  was 
bound  to  say  so,  and  no  more.  If  the  plaintiffs  deemed  the 
facts  set  forth  in  the  petition  of  Bingham  and  Stokes,  or  in 
their  answer,  material  to  their  case,  they  ought  to  have  stated 
those  facts,  as  facts  distinct  from  the  documents  in  which 
they  were  contained,  and  then  they  might  have  required  a 
distinct  and  particular  answer. 

229 


299  CASES  IN  CHANCERY. 

1818.  This  first  exception  is,  accordingly,  overruled. 

.^-^-^^       The  second  exception  is,  that  the  defendant,  by  his  an 
MORRIS       swer,  says  he  had  heard  that  a  commission  of  bankruptcy 
PARKER       was  issue(^  m  England,  against  John  J.  Waldo,  together  with 
his  partners,  Joseph  Waldo  and  John  Francis,  and  that  he 
was  declared  a  bankrupt ;  but  he  does  not  state,  according  to 
his  knowledge,  information  and  belief,  when  the  commission 
of  bankruptcy  issued,  and  when  J.  J.  W.  was   declared  a 
bankrupt. 

The  third  exception  is  nothing  more  than  the  second 
exception,  in  extenso ;  and  it  would  have  given  more  sim- 
plicity to  the  case,  if  they  had  been  consolidated.  This 
exception  is,  also,  that  the  defendant  does  not  state,  as  to 
his  information  and  belief,  when  John  Jones  Waldo  was  first 
declared  a  bankrupt,  and  what  estate  and  effects  he  then  had 
or  claimed,  and  who  were  his  assignees,  and  when,  and  to 
whom,  his  estate  was  assigned. 

[  *  300  ]  *The  bill  sought  discovery  as  to  these  facts,  and  charged 

that  the  defendant  refused  to  discover  when  and  where 
John  Jones  Waldo  first  became  a  bankrupt,  who  were  his 
assignees,  and  to  whom  his  estate  was  assigned,  and  when 
and  by  whom ;  and  special  interrogatories  were  pointed  to 
those  facts. 

The  only  inquiry  is,  Has  the  defendant  sufficiently  an- 
swered as  to  those  facts  ? 

He  says,  he  has  heard,  that  a  commission  of  bankruptcy 
was  issued  in  England,  against  John  Jones  Waldo,  together 
with  Joseph  Waldo  and  John  Francis,  all  of  whom  were  part- 
ners, as  he  has  heard  and  believed,  and  carried  on  trade  in 
England,  under  the  firm  of  Waldo,  Francis  and  Waldo,  and 
that  the  two  last  were  residents  in  England  when  the  com- 
mission of  bankruptcy  issued,  and  John  Jones  Waldo  was 
not  in  England,  but  in  the  United  States,  when  the  said 
commission  issued ;  that  he  never  appeared,  and  was  de- 
clared a  bankrupt  in  his  absence ;  and  as  to  the  time  when 
the  said  commission  issued  in  England,  or  as  to  the  pro- 
ceedings thereon,  further  than  he  has  been  informed  and  set 
forth  aforesaid,  the  defendant  is  utterly  and  entirely  ignorant, 
and,  therefore,  cannot  set  forth,  or  discover,  more  particularly 
than  he  hath  herein  before  done,  when  and  where  the  said 
John  Jones  Waldo  first  became  a  bankrupt,  or  what  estate 
and  effects  he  had,  or  claimed  right  or  title  to,  or  had  or 
claimed  any  interest  in,  when  he  became  a  bankrupt,  or  who 
were  chosen  assignee  or  assignees  of  his  estate  and  effects, 
or  to  whom,  or  when,  or  by  whom,  his  estate  and  effects, 
rights,  claims,  and  credits,  were  conveyed  or  assigned,  &c. 

If  the  exception  had  been,  that  the  defendant  states  thai 
230 


CASES  IN  CHANCERY.  300 

he  had  heard  that  a  commission  of  bankruptcy  issued  in  1818. 
England  against  Waldo,  without  stating  his  belief  one  way  ^**-~^^~' 
or  the  other  of  that  hearsay,  the  exception  would  have  been  MORRIS 
well  taken.  But  that  is  not  the  point  of  the  second  or  third  P^ER 
exception.  They  do  not  find  fault  with  the  answer  *in  the  r  %  QQI 
admission  of  the  fact  of  a  commission  having  issued.  Such 
an  exception  would  indeed  have  been  too  nice  and  hyper- 
critical ;  for  it  is  apparent,  that  the  defendant,  all  along, 
assumes,  and  means  to  admit,  the  fact  of  the  commission. 
The  objection  is,  that  he  does  not  answer  according  to  his 
knowledge,  information,  and  belief,  when  such  a  com- 
mission issued,  what  the  estate  the  bankrupt  then  had,  and 
to  whom  and  when  it  was  assigned.  But  these  exceptions 
are  founded  on  erroneous  deductions.  The  defendant  does 
declare  all  he  can  or  ought  to  be  asked  to  declare,  when  he 
says  that  he  is  "  utterly  and  entirely  ignorant "  of  the  time 
when  the  commission  first  issued,  and  what  estate  Waldo 
had,  and  when  and  to  whom  it  was  assigned.  He  avers  his 
absolute  ignorance  of  all  these  facts,  and  therefore  cannot 
answer  to  them.  He  states  what  he  has  heard  as  to  the  com- 
mission, and  so  far  there  is  no  exception :  he  then  says,  "  As 
to  the  time  when  it  issued,  or  as  to  the  proceedings  under 
the  commission,  farther  than  he  has  before  set  forth,  he  is 
utterly  and  entirely  ignorant."  His  ignorance  is  total  as  to 
the  time,  and  it  is  equally  absolute  as  to  any  proceedings 
other  than  those  he  has  particularly  set  forth.  After  this, 
what  use  can  there  be  in  requiring  a  further  answer?  The 
defendant  may,  indeed,  have  acquired  more  knowledge  since 
he  put  in  his  answer ;  but  this  I  am  not  to  suppose.  So,  per- 
haps, by  making  inquiries  in  Boston,  where  he  resides,  and 
certainly  by  sending  to  England,  he  may,  if  required,  gain 
the  requisite  information.  But  a  defendant  ought  not  to  be 
required  to  obtain  information,  so  as  to  meet  the  plaintiff's 
wishes,  and  thereby  become  his  agent  to  procure  testimony. 
He  is  to  answer  as  to  what  he  knows,  or  has  been  informed 
of,  when  called  upon  to  answer ;  and,  certainly,  if  the  de- 
fendant's mind  remains  with  only  his  former  knowledge  and 
information,  then  it  would  be  impossible  for  him  to  answer 
more  particularly  as  to  the  time,  and  as  to  the  other  matters 
contained  in  the  *exceptions,  without  the  admission  of  palpable  [  *  302  J 
perjury  in  his  first  answer. 

No  person  can  be  more  anxious  than  I  am  to  procure,  to 
every  proper  inquiry  in  a  bill,  an  explicit,  frank  and  full 
answer ;  and  I  am  exceedingly  jealous  of  every  thing  that 
looks  like  evasion.  My  mind,  on  this  subject,  was  fully  de- 
clared in  Woods  v.  Worrell  (1  Johns.  Ch.  Rep.  107.)  But, 
on  the  Dther  hand,  I  am  not  inclined  to  indulge  in  too  much 

231 


302  CASES  IN  CHANCERY. 

1818.       severity  of  criticism  in  weighing  the  force  of  every  word  and 
v^^-v—*^   sentence,  in  an  answer,  unless  I  perceive  some  design  to  evade 
PHEI.PS       a  sifting  inquiry.     My  impression,   on  reading  the  present 
GREEN        answer,  is,  that  it  is  not  liable  to  any  well-founded  objection 
as  to  the  matters  complained  of;  and  the  exceptions  are,  con- 
sequently, overruled.     The  question  of  costs  is  reserved. 

Exceptions  overruled 


PHE.LPS  against  W.   GREEN,  and  sixteen  other  De- 
fendants. 

If  any  doubt  arises  on  a  bill  for  a  partition,  to  the  extent  of  the  undi- 
vided rights  and  interests  of  the  parties,  the  usual  course  is,  to  direct 
a  reference  to  a  master  to  inquire  and  report  on  them,  as  the  estate 
and  interest  of  the  parties  must  be  ascertained  before  a  commission  is 
awarded  to  make  partition.  But  where  the  title  is  suspicious,  or  liti- 
gated, it  must  first  be  established  at  law  before  this  Court  will  in- 
terfere. 

Where  the  plaintiff's  right  to  one  undivided  moiety  was  admitted  by  all 
the  defendants  claiming  the  other  moiety,  but  they  differed  among 
themselves  as  to  their  titles  and  interests,  some  of  the  defendants 
claiming  the  whole  moiety  in  fee,  and  the  others  claiming  and  enjoy- 
ing separate  portions  of  it,  and  asserting  a  freehold  estate  therein,  the 
Court  ordered  partition  to  be  made  between  the  plaintiff  and  all  the 
defendants,  aggregately  ;  dividing  the  premises  into  two  equal  moieties, 
so  as  to  give  one  moiety  to  the  plaintiff  in  severally,  and  -leaving  the 
other  moiety  to  be  divided  between  the  defendants,  on  a  further  ap- 
plication to  the  Court,  when  their  conflicting  claims  should  have  been 
established  at  law;  the  plaintiff,  in  the  meantime,  to  pay  his  own 
costs  of  suit,  and  the  expenses  of  the  commission,  reserving  the  ques- 
tion as  to  the  defendants'  proportions  of  costs,  until  such  further  ap- 
plication. 

January  31.  BILL  for  the  partition  of  land.  The  plaintiff  stated  that, 
*  303  J  being  seised  in  fee  of  an  equal  and  undivided  moiety  *of  lot 
No.  2,  in  the  second  allotment  of  the  Oriskany  patent,  con- 
taining 740  acres,  he,  on  the  12th  of  September,  1803,  took 
possession  of  the  westerly  half  part  of  the  premises,  the 
easterly  half  being  in  possession  of  some  or  all  of  the  defend- 
ants. That  he  has  since  continued  in  possession  of  the 
westerly  part,  and  made  great  improvements  thereon.  That 
there  are  various  conflicting  claims  as  to  the  other  moiety  of 
the  lot.  That  Joseph  Winter  was  seised  thereof,  in  trust  foi 
Patrick  Heathy,  who,  by  doed,  dated  August  8,  1806,  re- 
232 


CASES  IN  CHANCERY.  303 

leased  his  right  to  Temperance  Green,  for  her  life,  with  power,        1818. 
by  her  will,  to  appoint  uses  and  trusts  among  her  nine  chil-  x-^-N/^fc_x 
dren,  defendants.     That  two  of  the  children  are   infants.       PHELPS 
That  by  a  decree  of  this  Court,  of  the  5th  of  October,  1815,       GREEN 
J.  W.  was  ordered  to  release  to  Mary  and  Henry  Green,  in 
fee,  and  in  trust,  &c.,  all  the  lands  held  by  him,  in  trust,  &c. 
That  the  six.  defendants  last  named   severally  possess  parts 
of  the  eastern  half  of  the  lot,  claiming  the  same  in  their  own 
right,  as  tenants  in  common  with  the  plaintiff.     That  all  the 
defendants  possessing  the  eastern  half  have  made  extensive 
improvements. 

That  partition  of  the  lot  can  be  made  so  as  to  save  the 
plaintiff  his  improvements,  and  do  justice  to  all  the  persons 
interested.  That  the  defendants  refuse  to  come  to.  a  parti- 
tion, and  the  six  last-named  defendants  refuse  to  show  their 
title  deeds,  and  the  plaintiff  is  uninformed  of  their  interests  in 
the  lot.  The  plaintiff  prayed,  that  all  the  defendants  may 
state  what  interest  they  have  in  the  lot ;  that  the  last  six  may 
produce  their  deeds  under  which  they  claim,  for  the  inspec- 
tion of  the  Court,  and  that  the  lot  may  be  decreed  to  be  di- 
vided between  the  plaintiff  and  such  of  the  defendants  as 
have  an  interest  therein,-  so  as  each  one  may  have  his  im- 
provements, if  the  lot  can  be  equitably  divided  in  that  man- 
ner ;  that  a  commission  may  issue  for  that  purpose  ;  and  that 
all  proper  parties  *may  join  in  executing  to  each  other  all  ne-  [  *  304  ] 
cessary  deeds  and  conveyances,  &c.  The  answer  of  William 
G.  and  Temperance  G.,  and  their  children,  admitted  all 
the  facts  stated  by  the  plaintiff,  and  consented  to  a  partition, 
claiming  the  other  undivided  moiety,  and  stating,  that  H.  G. 
and  M.  G.  were  seised  thereof,  in  trust,  &c.  That  the  six 
defendants  last  named  are  in  possession  of  their  moiety,  but 
that  they  have  no  right  or  title. 

The  answer  of  five  of  the  other  defendants  admitted  the 
title  of  the  plaintiff,  but  set  up  an  estate  for  three  lives,  as 
to  200  acres,  in  their  several  possessions.  They  denied  all 
knowledge  of  the  title  of  the  other  defendants,  and  consented 
to  a  partition,  whenever  the  Court  should  determine  their  re- 
spective rights. 

The  answer  of  the  last  defendant  admitted  the  plaintiff's 
title,  and  set  up  a  life  estate  in  150  acres,  in  his  possession, 
and  consented  to  a  partition,  &c. 

General  replications  were  filed  to  the  answers ;  but  MO 
witnesses  were  examined  on  either  side. 

S.  Ford,  for  the  plaintiff. 

Gold  and  Sill,  for  the  defendants,  W.  and  T  Green  and 
their  children. 

VOL.  III.  30  233 


304 


CASES  IN  CHANCERY. 


1818. 


PHELPS 


W.  A.  Duer  and  H.  R.  Storrs,  for  the  six  other  defendants 


GREEN. 


THE  CHANCELLOR.  When  the  question  arises  on  a  bill 
for  a  partition,  as  to  the  undivided  rights  and  interests  of  the 
parties,  the  usual  course  is  to  direct  a  reference  to  a  master  to 
inquire  and  report.  The  Court  must  first  ascertain  the  estate 
and  interest  of  the  parties  respectively,  before  the  commis- 
sion to  make  partition  can  be  awarded.  This  course  was 
followed  in  Agar  v.  Fairfax.  (17  Vesey,  533.)  But  this  is 

[  *  305  ]  a  peculiar  case,  and  that  course  cannot  *well  and  safely  be 
pursued.  The  plaintiff's  right  to  an  undivided  moiety  of  the 
lot  is  admitted,  and  all  the  defendants  are  consenting  to  a 
partition,  so  far  as  respects  the  division  of  the  lot  into  equal 
moieties.  The  dispute  is  between  the  defendants,  as  to  their 
title  and  interest  to  the  other  moiety.  Six  of  the  defendants 
are  in  possession,  claiming  and  enjoying  separate  portions  of 
that  moiety ;  and  they  set  up  a  freehold  .estate  in  the  same 
The  remaining  defendants,  who  are  not  in  possession,  claim 
the  whole  of  that  moiety,  by  a  present  vested  interest  in  fee. 
It  is  not  proper  that  such  a  controversy  should  be  tried  by  a 
reference.  It  is  a  question  of  legal  title,  and  should  be  settled 
at  law.  In  Wilkin  v.  Wilkin,  (1  Johns.  Ch.  Rep.  111.)  it 
was  understood,  that  if  the  title  was  doubtful,  or  disputed,  it 
must  be  first  established  at  law,  before  partition  was  to  be 
made ;  and  in  that  case  the  question  was  referred  to  a  Court 
of  law.  Partition  is  matter  of  right  where  the  title  is 
clear,  but  not  otherwise.  If  the  title  be  suspicious,  a  Court 
of  equity,  as  the  vice-chancellor  observed  in  Baring  v.  Nash, 
(\Vesey  and  Beames,  557.)  may  well  pause  in  directing  par- 
tition. The  reference  seems  to  apply,  not  to  the  case  where 
the  title  is  litigated,  but  to  cases  of  doubt  and  difficulty,  as  to  the 
extent  of  the  undivided  interest  of  the  respective  claimants. 

It  appears  to  me,  therefore,  that,  in  this  case,  the  partition 
ought  to  be  confined  to  the  right  of  the  plaintiff,  and  to  that 
of  the  defendants,  considered  aggregately  ;  and  that,  as  to  the 
conflicting  claims  between  the  defendants,  they  ought  to  be 
settled  at  law  before  any  turther  partition  be  made.  The 
costs  of  the  partition  must,  in  such  case,  in  the  first  instance, 
fall  upon  the  plaintiff;  for,  until  the  rights  and  interests  of  the 
defendants  are  ascertained,  they  cannot  justly  be  called  upon 
to  contribute.  The  English  rule  as  to  costs  on  partition 
seems  now  to  be,  (17  Vesey,  558.)  that  no  costs  are  given 
until  the  commission ;  and  that  the  costs  of  issuing,  execu- 
ting, and  confirming  the  Commission,  are  borne  by  the  parties, 
in  proportion  to  the  value  of  their  respective  interests,  and 

^  Costs  on  par-  that  there  should  be  no  costs  of  the  subsequent  proceedings. 
But  the  practice  in  this  Court  is,  to  charge  the  costs  of  the 
334 


306] 


titicn. 


CASES  IN  CHANCERY  ,306 

suit  upon  the  parties  respectively,  in  proportion  to  the  value        1818. 
of  their  respective  rights  ;  and  this  rule  is  adopted  by  analogy  s^^-s/-^/ 
from  the  statute,  which  gives  the  like  costs  on  the  proceeding       PHELPS 
in  partition  in  the  courts  of  law.  GREEN 

A  decree  was  accordingly  entered,  declaring  that,  "  it  ap-  Decree. 
pearing,  by  the  admission  of  all  the  defendants,  that  the  plain- 
tiff is  entitled,  in  his  own  right,  in  fee,  to  one  equal  undivided 
moiety  of  lot  No.  2,  in  the  2d  allotment  of  Oriskany  patent, 
and  that  he  has  been  in  possession  of  the  westerly  half  of  the 
said  lot  since  1803,  and  has  made  valuable  improvements 
thereon  and  it  further  appearing,  that  the  other  equal  un- 
divided moiety  of  the  said  lot  is  claimed  by  the  several  de- 
fendants, who  set  up  a  title  to  unequal  interests,  and  advance 
conflicting  claims,  inasmuch  as  the  defendants  Mary  Green 
and  Henry  Green  claim  a  present  interest  in  fee  to  the  whole 
of  the  said  moiety,  in  trust,  &,c.,  and  inasmuch  as  the  six  de- 
fendants last  mentioned  in  the  bill  claim  to  have  freehold 
estates,  or  other  interests,  in  and  to  the  said  undivided 
moiety  ;  and  it  further  appearing,  that  the  six  defendants 
aforesaid  are  in  possession,  in  pursuance  of  their  claim,  of 
this  easterly  half  of  the  said  lot,  and  have  made  valuable  im- 
provements thereon,  and  that  as  between  each  other  there 
are  no  conflicting  claims  either  as  to  title  or  possession ; 
and  inasmuch  as  all  the  defendants  consent  to  a  just  and 
equitable  partition,  quantity  and  quality  relatively  considered, 
exclusive  of  improvements,  and  the  eleven  defendants  first 
named  in  the  bill  expressly  consent  that  the  westerly  half  of 
the  lot  be  allotted  to  the  plaintiff,  according  to  a  just  partition 
as  aforesaid :  Ordered,  fyc.,  that  partition  of  the  lot  be  made 
into  two  equal  moieties,  by  metes  and  bounds,  quality  and 
quantity  relatively  considered,  exclusive  *of  improvements,  [  *  307  j 
and  that  one  moiety  be  assigned  to  the  plaintiff;  and  if  it 
can  be  done  consistently  with  a  just  and  equal  partition  as 
aforesaid,  that  the  lot  be  so  divided  as  that  one  moiety  shall 
include  the  improvements  and  possession  of  the  plaintiff,  and 
that  such  moiety  be  assigned  to  the  plaintiff.  Ordered,  also, 
that  a  commission  issue,  &c.,  and  that  the  moiety  allotted  to 
the  plaintiff  be  held  and  enjoyed  by  him  in  severalty,  and 
that,  when  the  conflicting  claims  of  the  defendants  shall  have 
been  settled  at  law,  they  be  at  liberty  to  apply  to  this  Court, 
on  the  foot  of  this  decree,  to  have  further  partition  of  the 
other  moiety  of  the  lot,  according  as  their  legal  rights  shall 
appear;  and  that  the  question  as  to  what  proportion  or  part 
of  the  costs  ought  to  be  borne  by  the  defendants  or  eitner  of 
them,  be  reserved  until  such  application ;  and  that,  in  the 
meantime,  the  plaintiff  pay  his  own  costs  of  this  su  t,  and 
the  costs  of  executing  the  said  commission. 

235 


CASES  IN  CHANCERY. 


1818. 
<*~\^~^ 

M'KlNNON 

v. 
THOMPSON, 


February  5 


308 


M'KINNON  against  THOMPSON  and  others. 

A  testator  must  have  a  legal  or  equitable  title  in  the  land  devised,  at  th« 
time,  otherwise  nothing  passes  by  the  devise.  A  subsequently-ac- 
quired title  will  not  pass  by  it. 

Where  a  devise  fails  for  want  Of  title  in  the  devisor,  the  devisee  wil. 
not  be  relieved  out  of  other  parts  of  the  estate,  though  the  devisor  had 
a  judgment  which  was  a  lien  on  the  land. 

ON  the  coming  in  of  the  report  of  the  master  in  this  cause, 
before  whom  the  defendants  were  decreed  to  account,  a 
question  was  raised  on  the  report.  It  appeared  that  the  tes- 
tator, by  his  will,  dated  the  12th  of  March,  1806,  after  de- 
vising several  parts  of  his  real  and  personal  estate,  added  the 
following  clause :  "  I  do  will  and  direct,  that  the  rents,  issues 
and  profits  of  my  house  and  lot  of  ground  in  *  Mulberry  street, 
now  under  lease,  shall  be  received  by  my  executors  herein- 
after named,  until  the  determination  of  said  lease,  in  what- 
ever way  the  same  may  be  determined,  and  such  rents,  issues 
and  profits  shall  be  applied  to  the  maintenance  and  educa- 
tion of  my  said  grandchildren,  John  and  Catharine,  and 
after  the  determination  of  said  lease,  the  said  house  and  lot 
shall  be  sold  by  my  executors  hereinafter  mentioned,  at 
such  time  and  in  such  manner  as  they  may  deem  expedient, 
who  shall  make  such  deeds,  releases,  or  other  assurances  in 
the  law,  to  the  purchaser  or  purchasers  thereof,  as  may  be 
advised ;  and  the  avails  thereof  I  do  direct  them  to  pay  to 
my  said  grandson  John  and  granddaughter  Catharine,  or 
the  survivor  of  them,  when  they  shall  severally  attain  the  age 
of  twenty-one  years ;  and  in  case  of  the  death  of  my  said 
grandson  and  granddaughter,  without  leaving  lawful  issue, 
that  the  avails  shall  be  paid  to  my  said  nephew,  and  the 
children  of  John  Reid,  before  mentioned,  equally,  and  their 
assigns."  In  a  subsequent  part  of  the  will,  the  testator  made 
this  residuary  devise :  "  I  do  will,  bequeath  and  devise  all  the 
residue  of  my  real  and  personal  estate,  to  my  son  Neill,  and 
my  grandchildren  John  and  Catharine,  their  heirs  and  assigns, 
and  to  the  survivor  and  survivors  of  them  equally." 

The  facts  relative  to  the  house  and  lot  above  mentioned, 
appeared,  from  the  master's  report,  to  be  as  follows : — 

On  the  30th  of  March,  1806,  the  testator  was  seised  in 
fee  of  the  said  house  and  lot,  and  on  that  day,  conveyed  the 
same  to  his  daughter,  the  wife  of  Ignatius  Redmond,  in  fee ; 
that  on  the  12th  of  August,  1809,  Redmond  confessed  a  judg- 
ment to  the  testator,  to  secure  the  payment  of  a  debt  of  2,500 
236 


CASES  IN  CHANCERY.  308 

doJars  ;  that  nothing  was  ever  paid  upon  the  judgment ;  that,        1818. 
-)ii  the   12th  of  October,  1809,  Redmond  and  his  wife  duly  ^*~^~*^ 
conveyed  the  house  and  lot  to  George   White,  who,  on  the     M'KINNON 
13th  of  October,  1809,  reconveyed  it  to  Redmond,  in  fee;     THOMPSON. 
that,  *on  the  28th  of  October,  1809,  a  mortgage  on  the  lot       r  *  QQQ  i 
from  Redmond  and  wife  to  J.  Kelso.  to  secure  750  dollars, 
was  registered,  and  the  mortgage  debt  remained  unsatisfied ; 
that  Redmond's  wife  died  the  26th  of  October,  1809,  and 
Redmond  himself  on  the  14th  of  February,  1810;  that,  after 
Redmond's  death,  the  testator  took  possession  of  the  house 
and  lot,  and  received  the  rents,  and  continued  in  possession 
until  his  death  ;  and  that,  shortly  before  his  death,  which  was 
in  1816,  he  leased  the  house  and  lot  for  14  years. 

The  plaintiff  is  the  testator's  son  mentioned  in  the  residu- 
ary clause ;  the  defendants  are  the  executors ;  and  the  bill 
was  for  an  account.  By  a  decree  of  the  first  of  September, 
1817,  the  defendants  were  directed  to  account  to  the  plain- 
tiff for  one  third  of  the  residue  of  the  real  and  personal  estate, 
and  upon  such  accounting,  the  master  considered  the  judg 
ment  debt  against  Redmond  as  personal  estate. 

A  question  was  raised,  between  the  parties,  upon  this  re- 
port, to  whom  belonged  the  judgment  debt,  or  the  house  and 
lot  on  which  it  was  a  lien,  at  the  time  of  the  will. 

Van  Wijck,  for  the  plaintiffs,  contended,  that  the  defend- 
ants must  account  for  the  judgment  debt  against  Redmond, 
as  part  of  the  residuary  personal  estate,  of  which  one  third 
was  given  to  the  plaintiff,  and  the  residue  to  the  two  grand- 
children ;  and  that  the  devise  of  the  house  and  lot,  or  the 
proceeds  of  the  sale  thereof,  to  the  two  grandchildren,  was 
null  and  void,  inasmuch  as  the  testator  had  no  title  to  the 
house  and  lot  when  the  devise  was  made. 

Baldwin,  for  the  devisees,  contended,  that  the  intention 
of  the  testator  was  clearly  declared,  that  the  house  and  lot, 
which  the  testator  must  have  substituted  for  the  judgment 
debt  charged  upon  it,  and  considered  it  as  his  own,  should  go 
exclusively  to  the  grandchildren. 

*THE  CHANCELLOR.  The  devise  of  the  house  and  lot  was  [  *  310  ] 
null  and  void,  inasmuch  as  the  testator  had  no  legal  or  equi- 
table title  to  it  at  the  date  of  the  devise.  The  judgment  debt 
was  a  lien,  but  gave  no  title ;  even  that  lien  could  not  have 
been  enforced  by  execution  against  the  land,  except  on  a 
deficiency  of  goods  and  chattels.  Redmond  may  have  had 
personal  property,  at  the  time,  sufficient  to  satisfy  the  judg- 
ment. But  that  circumstance  is  not  material.  A  devise  is 

237 


310  CASES  IN  CHANCERY. 

1313  in  the  nature  of  a  conveyance,  or  an  appointment  of  a  specific 
^^-^x-*^  estate,  and  nothing  passes,  but  what  the  testator  owned  at 
M'KINNON  the  time  of  the  devise.  No  rule  is  better  settled  than  that 
THOMPSON  ^Inch  declares,  that  the  testator  must  have  a  legal  or  equitable 
title  in  the  land  devised  at  the  making  of  the  will,  or  nothing 
will  pass.  A  title  subsequently  acquired  is  of  no  avail.  All 
that  Courts  of  equity  have  done,  is  to  consider  an  equitable 
interest  founded  on  articles  for  a  purchase,  and  which  equity 
would  enforce,  as  real  estate  which  will  pass  by  a  devise. 
But  here  it  is  also  requisite,  that  the  agreement  to  purchase 
should  exist  prior  to  the  devise.  (Longford  v.  Pitt,  2  P. 
7F»w.  629.  Greenhill  v.  Greenhill,  Free,  in  Ch.  320.  Pot- 
ter v.  Potter,  1  Fesey,  437.  Lord  Rosslyn,  in  2  Vesey,jun. 
427.  Lord  Eldon,  in  7  Fesey,  147,  399.)  Where  a  devise 
thus  fails  for  want  of  a  title  at  the  time,  the  Court  cannot  re- 
lieve the  devisee  out  of  other  parts  of  the  testator's  estate. 
A  deficiency  in  a  specific  legacy  (and  every  devise  is  neces- 
sarily specific)  is  never  supplied  in  that  way.  The  gift  to- 
tally fails.  (Ashton  \.Ashton,  Cases  temp.  Talbot,  152.  2 
Fesey,  569.  S.  P.) 

Nor  can  the  devise  of  the  house  and  lot  be  considered 
or  allowed  to  operate  as  a  bequest  of  the  judgment  debt. 
There  is  no  color  for  such  a  construction,  and  no  necessary 
connection  between  the  one  subject  and  the  other.  If  that 
was  the  testator's  intention,  it  may  be  said  quod  voluit  non 
dixit.  The  plain  result  of  the  case  is,  that  the  devise,  as  to 
[  *  311  1  the  house  and  lot,  is  void,  and  the  defendants  *must  account 
to  the  plaintiff  for  the  one  third  part  of  the  judgment  debt. 

Decree  accordingly. 


CASES  IN  CHANCERY. 


31J 


1818. 


SCHOONMAKER  against  GlLLETT. 

GlLLETT. 

On  affidavits  of  a  breach  of  an  injunction  to  stay  waste,  and  of  personal 
service  of  a  copy  of  the  affidavits,  and  notice  of  the  motion,  an  at- 
tachment was  ordered  to  bring  up  the  defendant  to  answer  for  the 
contempt. 

THE  defendant  was,  on  the  7th  of  January  last,  served  February  10, 
with  an  injunction  to  stay  waste.  On  the  2d  of  February 
inst..  he  was  served  with  a  notice  on  the  part  of  the  plaintiff, 
that  the  Court  would  be  moved  on  the  9th  inst.  that  he  stand 
committed  to  prison  for  breach  of  the  injunction  ;  and  he  was 
at  the  same  time  served  with  copies  of  the  affidavits  of  Charles, 
Ely,  and  of  the  plaintiff,  stating,  that,  on  the  3d  inst.,  a  son 
of  the  defendant  was  cutting  and  felling  trees  on  the  prem- 
ises, in  sight  of  the  defendant,  who  saw  it,  as  was  believed ; 
and  that  the  defendant,  at  the  same  time,  was  requested  not 
to  cut  the  timber,  and  replied,  that  he  would  cut  the  timber. 

H.  Bhecker,  on  the  above  affidavits,  moved  for  an  attach- 
ment to  bring  up  the  defendant.  He  cited  2  Harr.  Pr.  268t 
Neivland's  Prac.  101. 

No  opposition  was  made. 

THE  CHANCELLOK,  on  the  authority  of  the  case  of  Anger- 
stein  v.  Hunf,  (6  Vesey,  488.)  and  on  the  due  service  of  the 
affidavits  and  notice,  ordered,  that  an  attachment  issue  to  the 
sheriff  to  bring  the  defendant  into  Court,  to  answer  for  the 
contempt. 


CASES  IN  CHANCERY. 


.    LIVINGSTON    and  others  against    NEWKIRK  and  his 

Wife. 

After-acquired  lands  do  not  pass  by  a  will  previously  made. 

An  equitable  interest  in  land,  founded  on  articles  of  agreement  for  the 
purchase,  will  pass  by  a  subsequent  devise  ;  and  if  there  be  no  de- 
vise, it  will  descend  to  the  heir ;  and  the  executor  must  pay  the  pur 
chase  money,  for  the  benefit  of  the  heir. 

Where  a  deed  to  the  testator  comes  into  possession  of  the  executor,  who 
does  not  produce  it,  or  account  for  its  loss,  the  most  favorable  intend- 
ment,  as  to  its  contents,  will  be  made  for  the  benefit  of  the  heir. 

If  an  executor  or  administrator  pays  debts  out  of  his  own  moneys,  to  the 
value  of  the  personal  assets  in  hand,  he  may  apply  those  assets  to 
reimburse  himself;  and  by  such  election,  the  assets  become  his  own 
property. 

If  an  executor  be  directed  to  sell  land,  it  seems,  that  he  cannot  retain  it, 
as  he  may  personal  assets. 

But  if  the  personal  assets  prove  insufficient,  and  the  executor  has  paid 
debts,  out  of  his  money,  to  the  value  of  the  land,  he  may,  if  the  land 
is  ordered  to  be  sold,  retain  the  proceeds  for  his  own  indemnity. 

The  order  of  marshalling  assets,  towards  the  payment  of  debts,  is,  to 
apply,  1.  The  general  personal  estate  ;  2.  Estates  specifically  and  ex- 
pressly devised  for  the  payment  of  debts,  and  for  that  purpose  only  ; 
3.  Estates  descended ;  4.  Estates  specifically  devised,  though  generally 
charged  with  the  payment  of  debts. 

January  2G  THE  bill,  the  26th  of  November,  1812,  stated,  that  letters 
and  ebmary  paieni  were  granted  the  8th  of  July,  1790,  to  John  Earnest 
Pier,  for  lot  No.  6,  in  the  township  of  Marcellus.  In  1791, 
Pier  sold  the  lot  to  Peter  Schwjlcr  for  thirty  pounds,  and  by 
writing  under  his  hand  and  seal,  sold  and  conveyed,  or  cov- 
enated  to  sell  or  convey,  the  said  lot,  for  the  consideration 
aforesaid,  to  P.  S.,  in  fee,  and  delivered  the  deed  to  him. 
P.  S.,  on  the  24th  of  November,  1786,  made  his  will,  and  de- 
vised the  residue  of  his  real  and  personal  estate,  after  payment 
of  his  debts,  to  his  wife,  Gertrude,  in  fee.  P.  S.  died  with- 
out issue,  on  the  4th  of  January,  1792,  without  altering  or 
republishing  his  will.  His  wife,  as  sole  executrix,  proved  the 
will,  and  took  possession  of  all  the  estate,  and  his  books  and 
papers,  among  which  was  the  deed,  or  covenant,  as  the 
plaintiffs  alleged,  for  the  said  lot.  The  plaintiff  C.  L.  is 
[  *  313  ]  the  only  *sister  of  P.  S.,  the  testator,  and  J.  C.  and  W.  C. 
his  only  brothers  and  heirs  at  law.  The  plaintiffs  alleged,  that 
G.  S.,  the  widow,  and  executrix,  for  the  fraudulent  purpose 
of  defeating  the  plaintiffs,  as  devisees,  obtained  a  release  from 
Pier  to  her,  for  the  said  lot,  and  afterwards  destroyed  or 
suppressed  the  said  deed  or  covenant  to  the  testator ;  that 
240 


CASES  IN  CHANCERY.  313 

she,  in  1794,  married  the  defendant  N.,  who  fraudulently  ad-        1818. 
vised  or  approved  the  measure.     The  bill  prayed  for  general  »^**~^-+^/ 

relief,  &.C.  LIVINGSTON 

The  defendants,  in  their  answer,  admitted  the  letters 
patent,  and  that  an  instrument  in  writing,  of  some  kind,  was 
executed  between  Pier  and  P.  Schuyler,  relative  to  the  lot, 
but  they  did  not  recollect,  and  had  no  means  of  ascertaining, 
the  precise  date,  or  the  nature  and  terms  of  the  instrument ; 
and  they  believed  that  the  instrument  was  lost  or  destroyed, 
but  they  were  ignorant  when  or  how  it  was  destroyed,  or 
what  had  become  of  it.  The  defendant  G.  (Mrs.  JV.)  said 
that,  soon  after  the  death  of  P.  S.,  she  found  the  said  instru- 
ment among  his  papers,  and  showed  it  to  C.  J.  Y.,  and  re- 
quested his  opinion  on  it,  and  he  informed  her,  that  it  was 
of  no  effect ;  that  she  thereupon,  at  the  solicitation  of  Pier, 
on  the  31st  of  August,  1792,  agreed  with  him  for  the  pur- 
chase of  the  lot,  and  took  from  him  a  conveyance  in  fee 
for  the  consideration  of  thirty  pounds,  which  she  paid  to  him. 
That  when  she  married  P.  S.,  she  was  seised  of  a  large  real 
estate,  which  he  sold,  during  the  coverture,  and  applied  the 
proceeds  to  his  own  use ;  and  that  the  land  so  sold  exceeded 
in  value  the  estate  of  which  P.  S.  died  seised,  after  payment 
of  his  debts.  That  P.  S.,  who  died  the  4th  of  January,  1792, 
having  duly  made  his  will,  dated  November  4,  1786,  on  his 
death-bed  directed  the  defendant  N.  to  transcribe  his  will, 
in  order  to  a  republication  of  it,  and  the  defendant  brought 
the  will  to  P.  S,,  and  told  him  that  it  was  as  fair  as  he  could 
write  it;  that,  at  the  request  of  P.  S.,  he  read  it  in  the 
presence  of  three  credible  witnesses,  and  P.  S.  declared  it 
to  be  all  right;  that  he  *meant  that  his  wife  should  have  [*314] 
all  his  estate ;  and  directed  N.  to  put  the  will  under  cover 
and  preserve  it.  On  her  examination,  taken  under  the  act 
to  perpetuate  testimony,  on  the  1 9th  of  March,  1812,  she  said, 
that  she  did  not  know  whether  the  writing  from  Pier  was  a 
covenant  or  a  deed ;  but  after  her  husband's  death,  she  took 
it  to  C.  /.  Y.,  who  told  her  that  she  had  not  better  pay  P., 
unless  he  would  execute  a  deed.  That  she  offered  P.  the 
writing,  when  he  executed  the  deed  to  her,  and  he  left  it 
with  her.  That  she  paid  P.  thirty  pounds  in  flour,  wheat, 
and  money,  and  that  he  executed  the  deed  to  her,  in  pursu- 
ance of  the  original  agreement,  which  was  in  1791. 

The  defendants,  in  their  answer,  stated,  that  they  had  paid 
debts  of  the  testator,  P.  S.,  to  the  amount  of  8,951  dollars,  4 
cents,  of  which  a  schedule  was  annexed,  and  had  borrowed 
money,  on  their  credit,  for  that  purpose,  for  want  of  assets ;  and 
they  believed  that  there  were  other  debts  remaining  unpaid, 
and  unascertained.  That  the  whole  real  and  personal  estate 

VOL.  III.  31  241 


314  CASES  IN  CHANCERY. 

1818.       of  P.  S.  was  not  equal  to  the  debts  so  paid.     That  on  the 

\^*-^~*^/  29th  of  September,  1808,  they  sold  the  said  lot  in  parcels,  to 

LIVINGSTON    six  different  persons,  for  2,900  dollars,  and  had  given  deeds, 

NEW*"  i          and  taken  bonds  and  mortgages  for   the  purchase  money, 

about  half  of  which  had  been  paid  ;  and  that  this  was  done 

with  the  knowledge  of  James  Cochran,  one  of  the  plaintiffs, 

before  whom,  being  then  a  master  in  chancery,  the  mortgages 

were  acknowledged. 

Several  witnesses  were  examined  on  the  part  of  the  defend- 
ants. Pier  testified  that  he  sold  the  lot  to  P.  S.  for  30 
pounds,  a  small  part  of  which  was  paid  in  cash,  and  the 
residue  in  grain,  from  time  to  time,  and  that  he  executed  a 
writing  under  seal  to  P.  S.,  which  he  understood  to  be  a  deed 
for  the  lot.  That,  after  the  death  of  P.  S.,  being  told  that 
the  writing  he  had  given  was  not  good,  he  called  on  the 
defendant  G.  N.,  and  offered  to  execute  a  good  deed;  and 
[  *  315  ]  another  deed  was  drawn,  which  she  executed.  *That  neither 
of  the  defendants  paid  him  any  thing  for  this  deed,  nor  has  he 
received  any  consideration  for  the  lot,  other  than  what  was 
paid  to  him  by  P.  S.  ;  that  he  has  never  seen  the  deed  by 
him  to  P.  S.  since  it  was  executed  ;  that  he  executed  the 
second  deed  because  he  was  told  the  first  was  not  good. 

A.  G.,  a  witness,  testified,  that  the  real  estate  of  P.  S.,  at 
his  decease,  was  worth  about  4,000  dollars,  and  his  personal 
estate  823  dollars  ;  that  the  real  estate  consisted  of  a  farm 
of  200  acres,  in  Palatine,  in  the  county  of  Montgomery.  By 
the  will  of  P.  S.,  his  debts  were  charged  on  his  real  estate, 
and  his  widow,  who  was  sole  devisee  and  executrix,  was 
authorized  to  sell  it. 

J.  V.  Henry,  for  the  plaintiffs. 
Van  Vechten,  contra. 

THE  CHANCELLOR.  1.  The  first  question  upon  this  case 
is,  whether  the  plaintiffs  were  not,  upon  the  death  of  Peter 
Schuyler,  entitled,  as  his  heirs  at  law,  to  lot  No.  6,  in 
Marcellus. 

Lands  ac-  The  will  of  the  testator  was  made  on  the  24th  of  November, 
?aUtore,daAerama-  1786>  and  ^  was  not  afterwards  altered  or  republished  with 
king'  his  will,  the  solemnities  required  by  law.  The  will,  therefore,  did  not, 

°  "1 


It. 


and  could  not,  affect  lands  subsequently  acquired. 


non 
ton 


p.  310.  M'Kin-  It  appears  from  the  pleadings  and  proofs,  that  the  testator, 
'omp~  after  making  his  will,  purchased,  or  contracted  to  purchase, 
the  lot  in  question,  and  that  he  received  from  John  Earnest 
Pier,  the  original  patentee  of  the  lot,  either  a  conveyance  in 
fee,  or  a  covenant  on  the  part  of  Pier  to  convey  the  lot,  foi 
242 


CASES  IN  CHANCERY.  315 

a  valuable  consideration.     According  to  the  testimony  of        1818 

Pier,  a  formal  deed  in  fee  was  executed  and  delivered  by  ^,^-v^-^x 

him  to  Schuyler,  and  the  consideration  of  30/.  paid.     The    LIVINGSTON 

defendants  admit,  that  an  instrument  in  writing  of  some  kind     J\*EUVKU 

was  executed  and  delivered,  but  they  cannot  *recollect  the       r  #  gig  i 

nature  or  terms  of  it.     The  defendant  Mrs.  Newldrlc,  who 

was  the  widow  of  the  testator,  and  his  sole  executrix,  admits, 

that  she  found  such  an  instrument  among  the  papers  of  the 

testator,  after  his  death,  and  that  she  took  it  to  counsel  to 

obtain  an  opinion  thereon.     She  further  admits,  that  the  in- 

strument is  lost  or  destroyed,  though  she  cannot  tell  when  or 

how,  and  that  she  took  a  deed  in  fee  to  herself  from  the 

patentee,  and  paid   him  the  original  price.     The  patentee 

says,  that  he  re-executed  such  a  deed  to  her,  because  he  was 

told  the  first  writing  was  not  sufficient  ;  but  he  denies  that 

he  ever  received  any  further  consideration,  or  any  payment 

from  her.     In  an  examination  of  Mrs.  Newkirk,  taken  de 

bene  esse,  under  the  act  of  the  19th  of  March,  1812,  to  per- 

petuate testimony,  she  admits,  that  when  Pier  executed  the 

deed  to  her,  she  offered  him  the  original  writing,  but  that  he 

left  it  with  her. 

Whether  the  writing  in  question  was  a  conveyance  of  the  An  equitable 
lot,  or  only  an  agreement  to  convey,  does  not  appear  to  me  funded  "on^ 
to  be  material.  An  equitable  interest  founded  upon  articles  tides  of  agree- 
for  a  purchase,  and  which  a  Court  of  equity  will  specifically  muer"has^r  ^jj 
enforce,  is  real  estate  which  will  pass  by  a  devise  made  sub-  pass  by  a  sub- 
sequently ;  and  if  there  be  no  such  devise,  will  descend  to  anTIf  ^here^be 
the  heir,  and  the  executor  must  pay  the  purchase  money  for  no  devise,  it  will 
the  benefit  of  the  heir.  (Greenhitt  v.  Greenhill,  Prec.  in  Ch.  £c.endan^  £ 
320.  Longford  v.  Pitt,  2  P.  Wms.  629.)  But  in  this  case  I  executor  must 
have  a  right  to  conclude  that  an  absolute  conveyance  in  fee  ^ase  money  for 
was  executed  by  Pier  to  the  testator.  Here  was  a  writing  the  benefit  of 
which  came  to  the  possession  of  the  defendants,  and  upon  the  heir- 
which  the  executrix  took  advice,  and  which  writing  stood  in  Where  an  m- 
the  way  of  her  interest  under  the  will,  and  which  she  does  leaJ^being"  eT 
not  now  produce.  She  does  not  account  for  its  loss.  I  will,  ther  a  deed  for 
therefore,  give  the  most  favorable  intendment  as  to  its  con-  ta"or,  ' 


tents,  for  the  benefit  of  the  heir.     This  is  the  settled  doctrine  nant  to  convey 
in  the  books  ;  and  it  is  founded  on  the  maxim  of  law,  that  his    "exeaarut 
omnia  presumuntur  in  odium  spoliatoris.   (Hudson  v.  Arundel,  ajld       devise^, 
Hob.  109.  2  P.  *Wms.  748.  5.  C.  Dalston  v.  Coatsworth,  1  P. 
Wms.  731.  Lord  Hardwicke,  in  1  Vesey,  235.)     The  exist- 


ence  of  the  instrument,  and  which  Sir  Joseph  Jekyll   said,  in  she  .  does   nof 

r»   TI     TT?  mj^->     mf.i-v  /•        i  11  ^i        produce,  nor  ac- 

2  r.  Wms.  748.  750,  was  fundamental  to  a  decree  on  the  count    for    its 
point,  is  admitted.     We  have  also  the  direct  and  positive  lo^-  the,  Coi'n 

•  ft  i  i       •  i      will    make    the 

testimony  of  the  grantor,  that  the  instrument  was  not  merely  most  favorable 

intendment,    aj 
to  its  contents  for  the  benefit  of  the  heii\ 

243 


317  OASES  IN  CHANCERY. 

1818        an  agreement  to  convey,  but  an  actual  conveyance  of  the  lot 
•^^-v-^y  My  conclusion,  accordingly,  is,  that  lot  No.  6,  in  MarceUua, 
LIVINGSTON    descended,  on  the  death  of  Peter  Schuylcr,  to  the  plaintiffs, 
NEWARK.     as  n^s  heirs  at  law,  and  that  they  became  seised  in  fee. 

2.  The  next  point  in  the  case  is,  upon  what  principles, 
and  to  what  extent,  the  defendants  are  to  account  to  the 
plaintiffs  for  the  value  of  the  lot. 

By  the  will  of  the  testator,  he  directed  that  his  debts  should 
be  paid  out  of  his  personal  estate,  and  if  that  should  prove 
deficient,  that  the  deficiency  should  be  supplied  out  of  his 
real  estate  ;  and  the  executrix  was  authorized  to  sell  so  much 
of  it  as  should  be  requisite  for  that  purpose.  He  then  gave 
all  the  residue  of  his  estate,  real  and  personal,  to  his  wife,  in 
fee,  and  made  her  sole  executrix. 

The  defendants  state,  in  their  answer,  that  the  debts 
against  the  estate,  and  paid  by  them,  amounted  to  8,951 
dollars  and  4  cents,  of  which  they  have  annexed  a  list  ;  and 
that  they  have  expended  large  sums  of  their  own  money  for 
that  purpose.  They  state  further,  that  the  whole  real  and 
personal  estate  of  the  testator  was  not  equal  to  the  debts  which 
they  have  paid  ;  and  they  have  furnished  proof  that  the  per- 
sonal estate  of  the  testator  did  not  exceed  823  dollars,  and  that 
the  real  estate,  exclusive  of  the  lot  in  question,  did  not  exceed 
4,000  dollars  in  value.  They  state  further,  in  their  answer,  that 
upon  establishing  the  title  of  the  executrix  under  the  patentee, 
by  a  trial  at  law,  they  sold  the  lot  in  parcels  for  2,900  dollars  ; 
and  they  have  given  proof  of  such  sales,  and  of  the  amount 
of  the  consideration  given  for  one  of  the  parcels. 

[  *  318  ]  *If  a  reference  is  to  be  had  to  ascertain  these  facts  with 

more  precision,  it  is  previously  necessary  to  determine  to 
what  extent  the  executrix  is  to  be  held  responsible. 
if  an  execu-  The  rule  is  well  established,  that  if  an  executor  or  admin- 
irato°r'  pay"'  out  istrator  pays,  out  of  his  own  moneys,  debts  to  the  value  of 
of  his  own  moii-  the  assets  in  hand,  he  may  apply  the  assets  to  his  own  use, 
vaTueof  theVe^  tow&rds  satisfaction  of  the  moneys  he  has  expended.  (Ploivd. 
sonai  assets  in  186.  a.  Dyer.  2.  a.  187.  b.  S.  Touch.  454.  464.  1  Sound.  307. 
aStieas"^  Off.  of  Mrs,  p.  89,  90.)  The  assets,  by  such  election,  be- 
to  his  own  use  come  absolutely  his  own  property.  This  rule  has  always 
fectfo'n8  ofSan;s  ^een  applied  to  the  personal  assets  ;  and  it  is  said  (Dyer. 
moneys  so  ex-  2.  a.)  that  if  the  executor  be  directed  to  sell  the  lands,  he 
Cvndseudc'h  f]"d;  cannot  retain  it  in  hand,  as  he  may  personal  assets,  because 
the  assets  the  direction  of  the  will  is  that  it  be  sold.  This  case  seems 
to  Put  tne  distinction  altogether  upon  the  testator's  intention  ; 


if  an  execu-  and  if  the  personal  assets  prove  deficient,  and  the  executoi 

tor  be  directed 

to  sell  land,  it 

seems  that  he  cannot  retain  it  as  ne  may  personal  assets.     But  if  the  personal  assets  should  prove  in 

sufficient,  and  the  executor  has  paid  out  of  his  own  moneys  debts  to  the  value  of  the  land,  he  may,  i! 

the  land  is  ordered  to  be  sold,  retain  the  proceeds  for  his  indemnity. 

244 


CASES  IN  CHANCERY. 


318 


pays  out  of  his  own  moneys,  to  the  value  of  the  land,  there 
does  not  appear  to  be  any  solid  ground  for  the  distinction. 
If  this  Court  was  to  direct  the  lands  to  be  sold  in  such  a 
'case,  it  would  certainly  allow  the  executor  to  retain  for  his 
indemnity.  The  object  of  the  will,  and  the  ends  of  justice, 
are  equally  attained,  if  the  value  of  the  real  as  well  as  of 
personal  assets,  be  faithfully  applied  in  discharge  of  the  debts. 
But  in  this  case,  the  lot  in  MarceUus  was  sold,  as  soon  as  it 
was  cleared  of  adverse  claims  ;  and  the  plaintiffs  have  no 
further  interest  in  the  question  than  to  see  to  the  due  appli- 
cation of  the  proceeds  of  that  sale. 

If  the  executrix  was  bound  to  apply,  in  the  first  place,  the 
lands  devised  to  the  discharge  of  the  debts,  or  if  the  lands 
devised  and  the  lands  descended  were  to  bear,  equally  and 
ratably,  the  charge  of  the  debts,  then  the  inquiry  before  a 
master  will  be  necessary  to  ascertain,  with  certainty,  the 
amount  of  the  debts,  the  payments  which  have  been  made, 
and  the  value  of  the  lands  devised.  If  the  allegations  in 
the  answer  should  turn  out.  to  be  *supported  by  proof,  as  to 
points  where  further  proof  is  necessary,  then  there  will  be 
nothing  coming  to  the  plaintiffs,  and  the  object  of  their  bill 
will  fail.  It  cannot,  for  a  moment,  be  maintained,  that  the 
plaintiffs  are  entitled  to  hold  the  land  descended,  or  the  pro- 
ceeds of  that  land,  free  of  the  charge  of  paying  the  debts. 

I  am  of  opinion,  that  the  land  descended  to  the  plaintiffs 
is  to  be  applied  to  the  discharge  of  the  debts,  on  failure  of  the 
personal  estate,  before  the  lands  devised  to  the  widow  ;  and 
that  the  latter  are  to  be  applied,  only  so  far  as  may  be  requi- 
site to  make  up  the  deficiency.  The  order  of  marshalling 
assets  towards  payment  of  debts,  is  to  apply,  1.  The  per- 
sonal  estate  ;  2.  Lands  descended  ;  3.  Lands  devised.  This 
is  the  general  course,  and  every  departure  from  it  may  be 

.  ,   s     ,  '.  11 

considered  as  an  exception  to  a  general  rule. 

This  order  of  marshalling  assets  was  declared  by  Lord 
Talbot,  in  Pitt  v.  Raymond,  (cited  in  2  Aik.  434.)  and  again 
in  Chaplin  v.  Chaplin,  (3  P.  Wms.  364.)  In  the  latter  case, 
he  held,  that  where  the  testator  was  indebted  by  bond,  and 
devised  part  of  his  real  estate  to  his  three  daughters,  and 
suffered  another  part  to  descend  undevised  to  his  son  and 
heir  at  law,  that  the  lands  descended  must  be  liable  for  the 
bond  debt,  before  the  land  devised  ;  for  by  applying  the  land 
devised  to  pay  the  debt,  the  will  would  be  disappointed.  It 
is  too  well  settled  to  be  questioned,  that  the  personal  estate 
is  to  be  first  applied  to  the  payment  of  debts  and  legacies, 
and  that  a  mere  charge  on  the  land  will  not  exonerate  the 
personal  estate,  nor  any  thing  short  of  express  words,  or  a 
plain  intent  in  the  will  of  the  testator.  (Ancaster  v.  Mayer, 
1  Bro.  454.  JVatson  v.  Brickwood,  9  Vesey,  447.) 

245 


IS  18. 


LIVINGSTON 
NEVVK,RK 


[  *  319  ] 


The  order  of 


payment       of 
debts'  ,L,TI'e 

personal  estate  ; 

2.  Lands    de- 


319  CASES  IN  CHANCERY. 

1818.  The  doctrine  I  have  stated  is  not  only  thus  well  supported 

x_^~. ^~**~/  by  authority,  but  it  has  been  applied  to  cases  precisely  like 
LIVINGSTON    the  present. 

NEWKIRK.  In  Galton  v-  HancocTc,  (2  Afk.  424.  427.  430.  Ridge- 
\  *  3°0  I  w^'5  *Rep-  301.  S.  C.)  the  testator,  seised  in  fee  of  an  estate, 
borrowed  money  upon  mortgage,  and  then  made  his  will,  anu 
"  after  all  his  just  debts  were  satisfied,"  he  devised  the  estate 
mortgaged,  and  also  an  estate  for  lives,  to  his  wife,  and  made 
her  sole  executrix.  He,  after  making  his  will,  purchased  the 
reversion  in  fee  of  the  life  estate,  and  died.  The  bill  was 
filed  by  the  heir  at  law,  against  the  widow,  insisting  that  the 
estate  descended  was  not  liable  to  pay  the  mortgage  debt. 
But  Lord  Hardwicke  decreed  otherwise.  He  decided,  after 
much  consideration,  and  on  a  rehearing,  that  the  widow  was 
entitled  to  have  the  mortgage  upon  the  estate  devised  to  her 
exonerated  out  of  the  real  estate  descended  to  the  heir. 
Every  devisee  was  said  to  be  in  the  nature  of  a  purchaser, 
and  the  heir  was  not  entitled  to  contribution  against  a  pur 
chaser.  He  thought  "  the  case  not  hard  upon  the  heir,  be- 
cause the  testator  clearly  intended  to  give  away  the  whole 
estate  from  the  heir,  and  because  it  was  an  accident  merely, 
which  threw  a  part  of  it  upon  him,  viz.  the  ignorance  of  the 
testator  that  it  was  necessary,  after  purchasing  in  fee  of  the 
estate,  pour  outer  vie,  to  publish  the  will,  to  make  it  to  pass 
to  the  widow. 

This  case  is,  in  many  respects,  strikingly  analogous  to  the 
one  now  under  discussion.  The  difference  is,  that,  in  Galton  v. 
Hancock,  the  real  estate  was  not  expressly  made  chargeable 
with  the  debts  on  failure  of  the  personal ;  nor  was  the  exec- 
utrix authorized  to  sell  it.  But  the  devise  there  was  after  all 
his  just  debts  were  satisfied,  and  part  of  the  estate  devised  was 
charged  with  a  mortgage  debt ;  yet  the  burden  of  discharging 
that  very  debt  was  thrown  upon  the  land  descended,  in  exon- 
eration of  the  land  devised. 

The  case  of  Wride  v.  Clark,  decided  by  Sir  Thomas  Sewcll 
in  1765,  (Dickens,  382.  2  Bro.  261.  note,)  approaches  still 
nearer,  in  all  its  circumstances,  to  the  one  before  me.  The 
testator,  in  that  case,  charged  all  his  real  and  personal  estate 
[  *  321  ]  with  the  payment  of  his  debts,  and  *subject  thereto ;  he  devised 
his  real  estate  to  his  wife,  in  fee,  and  appointed  her  sole  ex- 
ecutrix. He  afterwards  purchased  other  lands,  which  de- 
scended undevised  to  the  heir  at  law.  The  debts  exceeded 
the  personal  estate,  and  the  master  of  the  rolls  decided  that 
the  descended  estate  should  be  applied  previous  to  the  de- 
vised estate.  So,  in  Dames  v.  Topp,  (2  Bro.  259.  note,)  the 
same  rule  received  the  sanction  not  only  of  the  same  mastei 
of  the  rolls,  but  of  Lord  Thurloiv.  In  that  case,  the  testator j 
seised  of  real  estates  in  fee,  subject  to  a  mortgage,  by  his  wil 
246 


CASES  IN  CHANCERY.  32J 

made  all  his  real  and  personal  estate  chargeable  with  tLe  pay-        1813. 
ment  of  his  debts  and   legacies,  and,  subject  thereto,  devised  -^^-x^^y 
his  real  estates  to  L.,  and  made  him  executor.   After  making    LIVINGSTON 
the  will,  the  testator  purchased  other  real  estate,  and  died,     NEW-KIRK 
leaving  two  sisters,  to  whom  the  real  estate,  purchased  after 
the  will,  descended.     The  master  of  the  rolls  directed  that 
the  persona]  estate  not  specifically  bequeathed  be  first  ap- 
plied in  payment  of  the  debts  and  legacies,  and  that  the  de- 
ficiency due  to  the  mortgagee  and  other  specialty  creditors, 
should  be  raised  out  of  the  real  estate  descended ;  and  if  that 
was  insufficient,  then  the  deficiency  to  be  made  good  out  of 
the  real  estates  devised  and  charged  with  the  payment  of 
debts.     This  decree,  on  appeal,  was   affirmed  by  the  lord 
chancellor. 

It  would  be  in  vain  to  search  for  cases  more  completely 
applicable  ;  and  it  is  impossible  to  distinguish  the  present 
case,  in  any  material  degree,  from  those  which  have  been 
cited,  and  which  must  be  regarded  as  the  established  law  of 
the  Court. 

In  Donne  v.  Lewis,  (2  Bro.  257.)  which  was  subsequent 
to  the  above  cases,  an  exception  was  made  by  Lord  Thurlow 
to  the  operation  of  the  general  rule,  under  special  circum- 
stances, forming  that  exception,  and  which  circumstances 
have  no  existence  in  the  present  case. 

The  testator  devised  lands  in  trust,  to  sell  and  pay  debts ; 
and  in  case  the  trust  estate  should  not  be  sufficient,  *that  [  *  322  ] 
the  deficiency  should  be  charged  on  the  five  several  estates 
specifically,  and  very  particularly,  devised  to  his  five  children, 
each  estate  to  bear  one  fifth  part  of  such  deficiency.  The 
testator  purchased  another  estate  after  making  his  will, 
and  died. 

The  question  was,  whether  the  testator  was  to  be  consider- 
ed as  giving  an  absolute  direction  out  of  what  fund  the  pay- 
ment should  come,  or  merely  as  arranging  the   property  he 
had  at  the  time  of  making  the  will,  without  any  view  of  ex- 
empting 01    favoring  any  property  he  acquired   afterwards 
Lord    Thurlow  went  at  large  into  the  consideration  of  the     Lord    Thur- 
subject,  and  reviewed  the  preceding  cases.     He  said  his  idea  t^'the'order1  ^ 
of  the  order  of  affecting  assets,  was,  1.  The  general  person-  marshalling '  of 
al  estate;  2.  Ordinarily  speaking,  estates  devised  for  the  pay-  Swmei*0'  f? 
ment  of  debts ;  3.  Estates  descended  ;    4.  Estates  specifically  debts, 
devised,  even  though  they  are  generally  charged  with  the 
payment  of  debts. 

The  chancellor  brought  the  case  then  before  him  under 
the  second  head ;  and  it  is  evident  that  he  meant  to  be  under- 
stood, by  estates,  under  that  head,  estates  specially  devised, 
for  the  express  and  particular  purpose  of  paying  debts,  and 

247 


322  CASES  IN  CHANCERY. 

1818.       n°t  merely  estates  generally  charged  with  the  payment  of 
v^*-v^»^x  debts ;  for  those  estates  fell  under  his  fourth   division.     He 
LIVINGSTON    declared,  in  the  case,  that  the  rule  was  settled,  that  a  bare 
NEWKIRK.     charge  of  the  debts  upon  the  land  would  not  do  ;  and  he 
said  the  only  question  that  could  reconcile  all  the  cases  was, 
Were  the  terms  of  the  will  only  a  general  indication,  that  the 
testator  meant  to  subject  his  property  to  his  debts,  or  did  he 
mean  more,  and  to  make  a  particular  provision  for  the  pur- 
pose ?     In  the  case  before  him,  the  will  went  further  than  in 
Davies  v.  Topp.     The  testator  meant  to  charge  an  estate 
specifically,  and  that  intention  could  not  be   executed,  with- 
out  exempting    the   estate  descended ;    and,   therefore,  his 
lordship,  after  admitting^  the  authority  of    Wride  v.  Clark, 
and  Davies  v.  Topp,  decreed,  that  the  debts  must  be  paid 
out  of  the  trust  estate,  and  then  out  of  the  devised  estates  ex- 
'  *  323  ]       pressly   *and   particularly    pointed  out  in  aid  of   the  trust 
fund. 

The  question  in  this  case  was  truly  between  the  descended 
estate  and  the  trust  fund,  specially  bequeathed  for  payments 
of  debts ;  for  the  testator  had  declared,  that  the  deficiency  of 
that  fund  should  be  supplied,  by  the  contribution  of  the  five  chil- 
dren ;  and,  therefore,  as  to  the  point  of  the  case,  they  were 
to  be  taken  as  one  fund. 

This  decision  was  no  more  than  what  Lord  Hardwicke 
had  declared  in  Powis  v.  Corbet,  (3  Aik.  556.)  that  where 
a  testator  created  a  particular  trust  out  of  particular  lands, 
and,  subject  to  that  trust,  devised  them  over,  the  devisee 
could  take  no  benefit  but  of  the  remainder ;  and  in  such  a 
case  the  heir  at  law  stood  in  a  better  situation  than  the 
devisee. 

Since  the  time  of  Lord  Thurlow,  the  question  was  brought 
before  Lord  Alvanhy,  as  master  of  the  rolls,  in  Manning  v. 
Spooner,  (3  Vesey,jun.  114.)  and  all  the  authorities  on  the 
point  of  marshalling  assets,  as  between  the  heir  and  devisee, 
were  reviewed  and  discussed. 

In  that  case,  the  testator  devised  his  real  estate  to  trus- 
tees, to  be  applied  "  in  payment  of  such  of  his  debts  and 
legacies  as  the  residue  of  his  personal  estate  should  prove 
deficient  in  paying."  After  making  the  will,  he  purchased 
other  lands,  and  died.  The  question  raised  was,  whether  the 
descended  estate  became  liable  for  the  debts  before  the  appli- 
cation of  the  fund  to  arise  from  the  devised  estate  under  the 
trust  in  the  will.  The  master  of  the  rolls,  in  delivering  his 
opinion,  observed,  that  the  question  depended  entirely  upon 
the  point,  whether  there  was  a  specific  gift  of  any  part  of  the 
estate  for  the  purpose  of  paying  the  debts,  or  whether  it  was 
only  a  general  charge  for  the  purpose.  That  the  case  of 
248 


CASES  IN  CHANCERY.  223 

Donne   v.  Lewis  was  determined  upon  principles  that  had        i313. 
been  constantly  acted  upon  since,  and  which  must  govern  aF1  s^^^-v^^x 
such  cases.     That  the  order  of  application  to  debts  was,    1.    LIVINGSTON 
The  general  personal  *estate,  unless  exempted  expressly,  or     NEWARK 
by  plain  implication  ;  2.    Any  estate  particularly  devised  for       <-  #  034  i 
the  purpose,  and  only  for  the  purpose,  of  paying  debts;  3. 
Estates  descended  ;     4.  Estates  specifically  devised.     That  fey*  opinion  oii 
the  question,  in  every  case,  where  the  contest  is  between  an  ttie  same  ciues 
estate  descended  and  an  estate  alleged  to  be  provided  for  the 
debts,  is,  whether  it  be  a  general  charge,  or  any  part  of  the 
estate  be  selected,  for  the  express  purpose  of  paying  the  debts. 
That  if  part  be  selected  for  that  purpose,  that  part  is  to  be 
applied  before  the  descended  estate,  whether  the  testator  had 
the  descended  estate  before  he  made  his  will  or  not.     That 
Lord  Thurlow,  in  considering  the  prior  cases,  was  clearly  of 
opinion,  that  the  question  was,  whether  the  testator  had  select- 
ed any  part  of  his  estate,  which  it  was  his  will  should  be  first 
applied,  or  whether  the  charge  was  only  to  subject  his  estates 
to  the  payment  of  his  debts.     Taking  this  rule  for  his  guide, 
Lord  Ahanley  held,  in  that  case,  that  the  real  estate  devised 
was  specially  appropriated  as  a  fund  to  pay  the  debts,  and  for 
no  other  purpose,  and  that  the  heir  was  not  to  be  called  upon 
in  that  case,  until  the  appropriated  fund  had  become   ex- 
hausted. 

This  construction  of  the  rule  is  in  perfect  conformity 
with  the  doctrine  in  all  the  preceding  cases ;  and  the  rule  is 
stated  with  such  accurate  deduction,  and  with  such  clear  pre- 
cision, as  to  remove  all  doubt  on  the  subject.  There  is  no 
contradiction  among  the  cases.  Lord  Thurlow  seemed  to 
admit  that  they  were  all  consistent  with  each  other,  and  rested 
on  one  simple  principle. 

The  law  on  this  point  was,  afterwards,  brought  into  repeat- 
ed discussion  before  Lord  Eldon ;  and  though  he  appeared  to     Lord   Eidm 
subject  the  cases  to  criticism,  and  to  suggest  doubts  and  dif-  p"int*he 
ficulties,  and  though  some  of  his  remarks  are  wanting  in  the 
requisite  precision,  he  undoubtedly  left  the  rule  where  it  was 
settled  by  the  former  decisions. 

In  Hanuood  v.  Oglander,  (6  Vesey,  199.  8  Vesey,  106.  S. 
*C.)  the  testator  charged  all  his  estates  with  the  payment  of  [  *  325  ] 
his  debts  ;  and  subject  thereto,  he  devised  all  his  real  estates 
to  his  wife  for  life,  with  remainders  over  in  fee ;  and  he  di- 
rected, that  as  soon  after  his  death  as  conveniently  might  be, 
part  of  his  real  estate,  ivith  the  exception  of  another  part  catted 
Canefield,  should  be  sold  for  the  payment  of  his  debts,  and  that 
the  devisees  thereof  should  join  in  the  sale.  The  principal 
question  in  the  case  was,  whether  the  will  was  not  subse- 
quently revoked,  as  to  a  part  of  the  real  estate  called  the  fee- 

VOL.  III.  32  249 


325  CASES  IN  CHANCERY. 

1818.  farm  rents  ;  and,  if  so,  then  another  question  was,  whether 
*^r-^-^s  these  fee-farm  rents,  descending  to  the  heir  at  law,  would 
LIVINGSTON  not  be  primarily  applicable  to  the  debts,  as  descended  estates, 
NIWKIRK  before  estates  devised.  The  chancellor  was  of  opinion,  that  the 
will  was  partly  revoked,  and  that  the  fee-farm  rents  descended 
to  the  heir,  and  were  not  to  be  first  applied  to  the  discharge  of 
the  debts.  He  understood  Lord  T/mr/oto's  doctrine,  in  JJonne 
v.  Lewis,  to  be,  that,  if  there  was  any  thing  in  the  will  that  went 
beyond  a  mere  charge,  and  pointed  out  a  particular  mode  or 
means,  it  would  save  the  descended  estate.  That  Lord  A1- 
vanley,  in  Manning  v.  Spooner,  did  not  express  the  opinion  of 
Lord  Thurlow,  and  that,  as  he  understood  Lord  Tkurlow, 
and  the  law  ever  since,  the  first  fund  applicable  was  the  per- 
sonal estate  not  specifically  bequeathed  ;  2.  Land  devised  for 
the  payment  of  debts,  not  merely  charged,  but  devised  or  ordered, 
to  be  sold ;  3.  Descended  estates  ;  4.  Lands  charged  with 
the  payment  of  debts.  That  the  distinction  was  between 
charging  all  the  real  estate  with  the  debts,  and  proceeding 
so  much  farther  as  to  propose  the  mode  in  which  the  debts 
were  to  be  paid.  In  that  case,  he  observed,  the  will  charged 
the  debts,  first  in  general  words,  then  in  special  words,  and 
directed  a  sale,  and  expressly  stated  the  parties  who  were  to 
join  in  the  sale.  It  was  a  devise,  therefore,  to  persons,  coupled 
with  a  devise  to  them  for  sale  for  payment  of  debts.  He  ad- 
mitted the  distinction  was  thin,  and  seemed  to  doubt  of  its 
[  *  326  ]  soundness ;  *but  being  settled,  he  thought  it  better  to  abide 
by  it. 

Some  of  Lord  Eldon's  expressions  in  this  case  appear  to  be 
too  much  at  large  ;  and  they  would  seem,  on  the  first  impres- 
sion, to  control  the  opinion  of  Lord  Alvanley,  and  to  limit  the 
doctrine  in  the  former  cases ;  but  when  we  come  to  attend 
closely  to  the  facts  upon  which  his  lordship  decided,  it  will  be 
found,  that  there  is  no  variation  in  the  rule.  The  will  here 
contained  a  special  direction  to  apply  a  designated  portion  of 
the  devised  lands  to  the  payment  of  the  debts.  The  appro- 
priation was  of  a  specific  part,  to  the  exclusion  of  another 
part.  It  was  in  exclusion  also  of  the  personal  estate  ;  for  the 
direction  was  to  sell  the  part  assigned  for  the  debts,  "  as  soon 
as  conveniently  might  be  after  the  testator's  decease,"  and 
the  parties  in  interest,  as  devisees,  were  directed  to  join  in  the 
sale.  No  doubt  could  well  exist  of  the  testator's  intention, 
under  such  a  special  provision,  and  marked  with  this  strong 
circumstance,  that  other  real  property  which  he  had  at  the 
time  was  exempted  from  the  application.  Here  was  a  crea- 
tion and  designation  of  a  particular  fund  for  the  debts,  and 
the  devisees  of  that  fund  wero  made  trustees  for  that  purpose. 
Here  ivas  a  devise  of  lands  for  the  purpose  of  sale  to  pay 
250 


CASES  IN  CHANCERY.  326 

debts,  and  the  case,  therefore,  fell  within  the  range  of  the  ex-        1818. 
ception  to  the  general  order  of  marshalling  assets,  and  which 
exception  was  admitted,  as  we  have  seen  inPowis  v.  Corbet, 
Donne  v.  Lewis,  and  Manning  v.  Spooner. 

In  Milnes  v.  Slater,  (8  Vesey,  295.)  Lord  Eldon  gave  a 
still  more  mature  opinion  on  the  subject. 

The  testator,  in  that  case,  directed  that  his  debts  and  lega- 
cies should  be  paid  out  of  his  personal  estate ;  but  if  the  same 
should  prove  deficient,  he  then  directed  that  the  deficiency 
should  be  supplied  according  to  a  particular  provision  for  the 
purpose,  in  which,  after  giving  some  legacies  and  a  devise  of 
a  life  estate  in  part  of  his  lands  to  his  *wife,  he  devised  all  [  *  327 
the  residue  of  his  real  and  personal  estate  to  trustees,  to  raise, 
by  mortgage  thereon,  a  sufficient  sum  to  pay  the  residue  of  the 
debts  and  legacies,  and  then  to  settle  the  same  estate  to  cer- 
tain declared  uses.  The  testator  purchased  other  real  estate 
after  making  his  will,  and  died. 

One  question  was,  whether  the  estates  descended  were 
applicable  in  ease  of  the  estates  devised. 

Lord  Eldon  said,  that  the  true  question,  according  to 
Lord  Thurloiv,  was,  whether  the  testator  meant  only  to 
behave  honestly,  which  is  all  a  general  charge,  imports,  or 
whether,  beyond  that  honest  conduct  in  creating  a  general 
charge  for  the  security  of  his  creditors,  he  meant  also  to 
create  a  particular  fund  for  payment  of  his  debts.  In  Powis 
v.  Corbet,  a  particular  term  was  raised  for  the  discharge  of 
the  debts,  which  was  held  sufficient  to  warrant  the  application 
of  the  lands  comprised  in  it,  before  the  descended  estates. 
His  lordship  admitted,  that  the  circumstance  of  the  devisor 
having  other  estates  which  he  does  not  touch,  goes  a  great  way 
to  show,  that  by  ordering  the  debts  to  be  paid  out  of  the 
devised  estates,  he  does  not  intend  the  application  of  those 
which  descended  ;  but  he  said,  the  case  was  very  different 
where  he  had  no  land  at  the  time  of  the  devise,  except  the  land 
devised,  and  afterwards,  by  descent  or  purchase,  acquired  other 
lands.  He  considered  that,  upon  the  authority  of  all  the  pre- 
ceding cases,  the  rule  must  now  be  considered  settled,  that 
whatever  may  be  the  ordinary  application,  if  there  be  a  real 
fund  created  for  the  discharge  of  debts,  that  will  be  applied 
first,  when  the  question  arises  between  the  heir  and  devisee, 
either  as  to  estates  which  the  devisor  had  at  the  time,  or 
which  he  acquired  afterwards.  He  meant  by  a  real  fund 
created,  the  same  as  one  selected,  according  to  Lord  Alvanley's 
expression ;  and  that  it  was  "  the  creation  of  a  particular 
fund  "  that  entitled  the  heir  to  say  the  descended  estate  was 
exempt.  He  declared  repeatedly  that  k  was  the  ere  ition 
or  raising  of  a  particular  fund  or  interest  for  the  debts  that 

251 


328*  CASES  IN  CHANCERY. 

1818.  required  *that  fund  to  be  applied,  in  exoneration  of  the  de- 
v^^-s^-^^x  scended  estate,  and  that  such  a.  particular  fund  was  created 
LIVINGSTON  by  the  will  in  that  case. 

^  we  test  tne  Present  case  by  all  these  examples,  it  will 
evidently  appear,  that  there  is  no  creation  of  any  particular 
fund  set  apart  for  the  debts,  so  as  to  form  an  exception  to  the 
general  rule  of  this  Court  in  marshalling  assets.  The  will 
here  went  no  further  than  to  make  a  general  charge  of  the 
debts  upon  the  whole  estate,  real  and  personal,  and  to  show 
that  the  testator  meant  to  be  honest,  by  charging  the  real 
estate  with  the  debts,  in  default  of  the  personal,  and  to  clothe 
the  executrix  with  the  ordinary  powers  for  that  purpose. 
The  direction  was  general,  that  if  the  personal  estate  should 
not  be  sufficient,  the  deficiency  was  to  be  supplied  "  out  ol 
the  real  estate ; "  and  the  executrix  was  authorized  "  to  sell 
the  same,  or  so  much  thereof  as  should  be  necessary  to  make 
up  the  deficiency."  The  direction  was  to  her  as  executrix, 
and  not  a  charge  upon  her  as  devisee.  In  her  latter  character, 
he  gave  her  the  residue  of  the  estate,  after  the  debts  were 
paid,  which  was  the  same  thing,  in  substance,  as  the  devise 
in  Galton  v.  Hancock,  where  the  devise  of  the  land  was  after 
all  the  just  debts  were  satisjled,  •  or  the  devise  in  Wride  v. 
Clark,  and  in  Davies  v.  Topp,  which  charged  all  the  estate 
with  the  payment  of  the  debts,  and  then,  subject  thereto, 
devised  it.  The  general  authority  to  sell  in  this  case  does 
not  fall  within  the  meaning  of  any  expressions  rather  indef- 
initely used  by  Lord  Eldon;  for  they  were  to  be  applied  to 
the  cases  before  him,  where  a  special  fund  was  marked  out 
for  the  debts,  and  a  duty  thrown  on  the  devisee,  qua  devisee, 
or  trustee,  to  apply  that  particular  fund.  To  allow  this  case 
to  break  in  upon  the  general  rule,  which  was  established  as 
early  as  the  time  of  Lord  Talbot,  would  be  to  unsettle  and 
destroy  that  rule  altogether.  It  would  be  to  allow  the  heir 
(certainly,  in  this  case,  contrary  to  the  testator's  meaning ;  for 
[  *  329  ]  the  ineffectual  attempts  to  republish  *the  will,  show  clearly 
that  he  never  meant  to  die  intestate,  or  to  withhold  any  part 
of  his  estate  from  his  wife,)  to  impair  or  defeat  the  object  of 
the  testator's  bounty. 

It  results,  then,  from  the  rule  which  I  have  thus  deduced 
from  the  cases,  that  the  debts  of  Peter  Schuyler  are  to  be 
charged,  1.  Upon  his  personal  estate ;  2.  Upon  the  lot  No. 
6,  in  Marcellus,  which  descended  to  the  plaintiffs,  and  was 
afterwards  sold  by  the  executrix ;  3.  Upon  the  estate  devised 
to  her. 

If  any  credit  is  to  be  given  to  the  answer,  and  to  the 
testimony  of  two  of  the  witnesses,  (  Gray  and  Beardsley,}  the 
debts  not  only  exhausted  the  personal  estate,  but,  also,  the 
252 


CASES  IN  CHANCERY.  329 

proceeds  of  the  lot ;  and  a  reference  to  a  master  for  further        1818 
inquiries  on  the  subject  would  be  useless  to  the  plaintiffs.  ^^~-^~ »L^ 
If  it  should  appear,  by  the  master's  report,  that  the  debts    LIVINGSTON 
paid  are  equal  to,  or  exceed,  the  value  of  the  personal  estate     N    v> 
and  the  amount  of  the  proceeds  of  the  lot,  the  bill  will  be 
dismissed.     The  plaintiffs  may  have  a  reference,  however,  if 
they  wish,  to  pursue  the  inquiry,  under  the  principles  which 
I  have  laid  down  ;  but  it  will  be  at  the  peril  of  costs. 

I  shall,  accordingly,  declare,  that  the  lot  in  Marcettus  men- 
tioned in  the  pleadings,  descended,  as  undevised  real  estate, 
to  the  plaintiffs,  as  heirs  at  law ;  and  that  the  defendants 
must  account  for  the  price  for  which  they  sold  the  lot,  in 
1808.  That  upon  such  accounting,  they  are  to  be  charged 
with  the  value  of  the  personal  estate  of  the  testator,  which 
came  to  the  possession  of  them,  or  either  of  them,  and  to  be 
credited  with  debts  of  the  testator,  which  they  had  paid ; 
and  if  the  debts  paid  are  found  to  be  equal  to,  or  exceed  the 
value  of  the  personal  estate,  and  the  proceeds  of  the  said 
lot,  the  defendants  are  to  be  no  further  charged ;  but  the 
master  is  to  report  accordingly,  to  the  end  that  the  bill  may 
be  dismissed.  But  if  the  debts  paid  do  not  exhaust  the 
personal  estate,  or  if,  *having  exhausted  it,  they  do  not  ex-  [  *  330  | 
haust  the  proceeds  of  the  sales  of  the  said  lot,  then  the  master 
is  to  report  the  amount  of  such  sales,  or  of  the  balance  of 
such  sales,  as  the  case  may  be,  remaining  unexhausted,  to- 
gether with  interest  thereon,  from  the  time  of  such  sales  up 
to  the  date  of  the  report.  And  unless  the  plaintiffs  shall, 
within  40  days  from  the  date  of  this  decree,  signify  their 
election,  by  notice  to  the  solicitor  of  the  defendants,  to  pro- 
ceed with  the  reference,  the  bill  shall  then  stand  dismissed 
without  costs. 

Decree  accordingly,  (a) 

(a)  Vide  Livingston  v.  Livingston,  ante,  p.  143,  and  Duke  of  Cumberlznd 
and  other*  v.  Codrington  and  others,  ante,  p.  229. 

253 


330 


CASES  IN  CHANCERY. 


1818. 

^-v~>* 

DUNKLEY 
V. 

VANBUREN. 


t'tvruary  26. 


DUNKLEY  against  VAN  BUREN  and  others. 

[Reviewed,  100111.279.] 

On  a  bill  to  foreclose  a  mortgage,  the  mortgagee  is  confined  to  his  rem- 
edy on  the  mortgage.  The  suit  cannot  be  extended  to  the  mort- 
gagor's other  property,  or  against  his  person,  in  case  the  property  mort- 
gaged is  not  sufficient  to  pay  the  debt  for  which  it  is  pledged. 

The  mortgagee's  further  remedy  is  at  law,  where  he  may  sue  at  th- 
same  time,  on  his  bond,  or  on  the  covenant  to  pay  the  money ;  and 
after  a  foreclosure  of  the  mortgage  in  equity,  he  may  sue  on  his 
bond,  at  law,  for  the  deficiency. 

It  seems  that  a  subsequent  suit  at  law,  to  recover  the  remainder  of  the 
debt  unsatisfied  by  the  sale  of  the  mortgaged  premises,  does  not  open 
the  foreclosure  and  revive  the  equity  of  redemption. 

BILL  to  foreclose  a  mortgage  given  to  secure  the  payment 
of  a  bond.  The  bill  was  taken  pro  confesso,  and  the  master 
reported  the  amount  of  the  bond  debt,  with  the  interest  due, 
and  unpaid. 

Cowdrey,  for  the  plaintiff,  suggesting  that  the  mortgaged 
premises  were  probably  insufficient  to  pay  the  debt,  moved, 
*that,  in  addition  to  the  usual  decree,  directing  the  premises 
to  be  sold  by  a  master,  a  further  provision,  that,  in  case  of  a 
deficiency,  the  defendant  V.  B.,  the  original  mortgagor,  pay 
the  remainder  of  the  debt  by  a  given  day,  or  that  execution 
issue  therefor  against  his  other  property,  or  against  his  body. 

THE  CHANCELLOR.  The  motion  must  be  denied.  The 
party,  on  a  bill  to  foreclose  a  mortgage,  is  confined  in  his 
remedy  to  the  pledge.  Such  a  suit  is  not  intended  to  act  in 
personam :  it  seems  to  be  generally  admitted  in  the  books, 
that  the  mortgagee  may  proceed  at  law  on  his  bond  or  cov- 
enant, at  the  same  time  that  he  is  prosecuting  on  his  mort- 
gage in  chancery  ;  and  that  after  foreclosure  here,  he  may  sue 
at  law  on  his  bond  for  the  deficiency.  (Lord  Redesdale,  in 
1  Sch.  and  Lef.  176.  and  13  Vesey,  205.  Aylct  v.  Hill, 
Dickens,  551.  Took's  case,  Dickens,  785.  2  Bro.  125. 
Perry  v.  Barker,  13  Vesey,  198.  Dashwood  v.  Blythway, 
1  Eq.  Cas.  Abr.  317.)  It  is  supposed  in  some  of  the  cases, 
that  the  subsequent  suit  at  law  for  the  remainder  of  the  debt 
left  unsatisfied  upon  the  sale  of  the  mortgaged  premises, 
opens  the  foreclosure  and  revives  the  equity  of  redemption. 
Whether  that  be  so,  is  not  now  to  be  discussed  ;  though,  if 
the  point  was  before  me,  I  should  be  much  inclined  to  agree 
in  opinion  with  Judge  Story,  in  Hatch  v.  White,  (2  Gallis. 
Rep.  152.)  that  there  is  no  just  foundation  for  the  doctrine; 
254 


CASES  IN  CHANCERY.  331 

and  I  should  especially  doubt  of  its  application  in  the  case        1818. 
of  a  judicial  sale  under  the  decree.     It  is  sufficient  to  ob-   ^^^^-^^ 
serve,  that  the  present  suit  is  the  ordinary  bill  to  foreclose,      DENNING 
and  was  not  intended  to  supply,  at  once,  the  place  of  a  suit 
at  law  upon   the  bond,  and  a  suit  in  equity  upon  the  mort- 
gage.    If  that  was  the  operation  of  it,  and  if  such  was  the 
course  of  the  Court,  the  discussion  in  the  above  cases  would 
never  have  arisen. 

Motion  denied. 


*DENNING  and  others  against  SMITH  and  others.  [  *332] 

[Distinguished.  6  Johus.  Ch.  333;    3  Sandf.  Ch.  57.     Followed,    6  Johns.  Ch.  Ill;  3 

Paige  398.] 

Though,  by  the  act  authorizing  the  loan  of  moneys,  &c.,  (sess.  31.  ch.  216.) 
the  mortgagor,  after  a  default  of  payment,  loses  all  equity  of  redemp- 
tion, and  the  commissioners  become  seised  of  an  absolute  estate  in 
the  premises,  yet  the  commissioners  are  trustees  for  the  people  to 
the  amount  of  the  mortgage  debt  and  interest,  and,  for  the  mortgagor, 
in  respect  to  the  surplus ;  and  the  mortgagor,  as  well  as  the  people, 
has  a  right  to  demand  of  the  commissioners  a  faithful  execution  of 
the  trust. 

The  notice  of  sale,  according  to  the  true  construction  of  the  act,  must 
continue  to  be  fixed  up  at  three  public  places,  and  be  advertised  in  a 
public  newspaper  of  the  county,  from  eight  days  after  the  4th  Tues- 
day of  May,  to  the  third  Tuesday  of  September^  or  the  time  of  sale. 

And  where,  on  a  default  of  the  mortgagor,  the  commissioners  caused 
the  mortgaged  premises  to  be  sold,  without  giving  due  public  notice 
of  the  sale,  pursuant  to  the  act,  and  under  circumstances  denoting 
fraud  and  collusion,  on  the  part  of  one  of  the  commissioners,  the 
sale  was  set  aside,  and  the  deed  executed  by  the  commissioners  or- 
dered to  be  delivered  up  to  be  cancelled  ;  and  the  proceedings  in  an 
action  of  ejectment  brought  by  the  purchaser,  to  be  stayed  by  a  per- 
petual injunction. 

BILL,  filed   22d   of  September,    1815,  stating   that  the     January  21 
plaintiff   William  Denning,  on  the  6th  of  February,  1812,  ^&tfarch9- 
obtained  a  judgment  in  the  S.  C.  against  Henry  Persen,  on 
a  bond  conditioned  for  777  dollars  and  79  cents.     That  H.  P. 
and  his  two  sons,  A.  and  J.,  being  indebted  to  the  plaintiff, 
Joseph  Klein,  in  400  dollars,  gave  him  a  mortgage  on  lot  No. 
11,  and  part  of  lot  No.  14,  containing  125  acres,  situate  in 
Cairo,  in  Greene  county ;   and  the  mortgage  was  recorded 
the  13th  of  February,  1812.     That  J.  K.  had  also  a  judg- 
ment against  them  docketed  the  1st  of  February,  181  2,  for 

255 


332  CASES  IN  CHANCERY. 

1818.       one  thousand  dollars ;  and  he  was  the  assignee  of  another 
\^^-^-~*^s   judgment  against  them,  docketed  the  13th  of  January,  1812. 
DENNING      for  750  dollars,  in  favor  of  J.  De  Witt.     Executions  were 
SMITH.       issued  on  the  judgment,  in  favor  of  W.  D.  and  J.  K.,  by 
virtue  of  which  the  sheriff  seized  and  sold  a  parcel  of  land 
in  Cairo  belonging  to  H.  P.,  and  also  the  lots  and   parcels 
above  mentioned ;   and    W.  D.  and  J.  K.  became  the   pur- 
[  *  333  ]       chasers  at  the   sheriff's  sale,  and  received  *a  deed  for  the 
same  from  the  sheriff',  dated  22d  of  April,  1812.     That  on 
the  15th  of  December,  1813,  W.  D.  and  J.  K.  sold  and  con- 
veyed   to    the    other    plaintiffs,  .Moses  Austin  and    William 
Sturgis,  the  land  so  purchased  at  the  sheriff's  sale,  for  3,500 
dollars,   and  received  from  them  mortgages  to  secure  the 
purchase  money.     That  on  the  21st  of  September,  1814,  it 
was  discovered  by  the  plaintiffs,  for  the  first  time,  that  Henry 
Persen  had,  on  the  5th  or  6th  of  July,  1808,  mortgaged  one 
of  the  lots  of  land  so  purchased  by  the  plaintiffs,  to  two  of 
the   defendants,  Sioddard  Smith  and  Abraham  Hallcnbeck, 
commissioners  for  loaning  moneys,  in  the  county  of  Greene, 
under  the  act  of  the  Legislature,  passed  the  llth  of  April, 
\ Webster's ed.  1808,f    for   securing   the    payment   of    seventy-five    dollars, 
P/392.  sess°.  31.  loaned  by  the  said  commissioners  to  H.  P. 
ch.  216.  That,  by  the  15th  section  of  that  act,  it  was  declared,  that 

if  any  borrower  should  neglect  to  pay,  yearly,  on  the  first 
Tuesday  in  May,  or  within  twenty-two  days  thereafter,  the 
yearly  interest  due,  the  commissioners  should  be  seised  of  an 
absolute  estate  in  the  land  mortgaged,  and  the  mortgagor 
should  be  utterly  precluded  and  barred  of  all  equity  of  re- 
demption. Yet,  as  well  by  the  equity  of  the  statute,  as  by 
the  several  provisions  of  it,  in  particular,  the  commissioners 
are  trustees  for  the  beneficial  interest  of  the  borrower  and  his 
assigns,  to  whom  they  are  directed  to  pay  the  surplus,  after 
the  mortgage  moneys  are  deducted. 

That,  by  the  19th  section  of  the  act,  it  is  declared,  that  if 
the  mortgagor,  his  heirs  or  assigns,  should,  at  or  before  the 
sale  of  the  commissioners,  pay  the  mortgage  money,  payable 
on  the  first  Tuesday  of  may  preceding,  and  the  costs,  the 
commissioner  shall  accept  thereof,  and  permit  the  owner,  or 
his  heirs  or  assigns,  to  take  possession  of  the  land,  and  hold 
it  until  a  further  default.  That,  by  the  20th  section  of  the 
act,  the  surplus  money,  if  any,  after  paying  the  mortgage 
debt  and  costs,  should  be  paid  to  the  mortgagor,  his  heirs  or 
assigns.  That,  by  the  17th  section  of  the  same  act,  the 
[  *  334  ]  commissioners  are  directed,  ^within  eight  days  after  the  last 
Tuesday  of  their  attendance,  aforesaid,  yearly,  to  cause  ad- 
vertisements to  be  fixed  up  in,  at  least,  three  of  the  most 
public  places  in  the  county,  and  in  one  of  the  public  newspapers, 
256 


CASES  IN  CHANCERY.  334 

describing  the  quantity  and  situation  of  the  lands,  and  giving        1815. 
notice  that  on  the  third  Tuesday  in  September,  they  would  be  vs_^~x/^-x»^ 
sold  at  the  Court-house,  at  auction,  &c.     That,  by  the  32d      DEN.NIHG 
section  of  the  act,  on  the  last  day  of  their  meeting  yearly, 
they  are  to  enter  whose  mortgages  are  foreclosed,  and  the 
number  and  sums  of  them,  and  also  enter  the  orders  for,  and 
copies  of,  the  advertisements,  for  sale,  and  places  at  which 
they  are  set  up,  and  who  set  them  up,  and  the  names  of 
the  purchasers,  and  the  prices,  and  to  whom  the  overplus 
belongs. 

That  the  plaintiffs,  as  assignees  of  the  estate  of  H.  P.  in 
the  land  mortgaged,  have  an  interest  in  the  compliance  of 
the  commissioners  with  these  provisions  of  the  act.  That 
the  value  of  the  premises  mortgaged  by  H.  P.  to  the  com- 
missioners was  three  thousand  dollars.  That  the  defendants, 
fraudulently,  &c.,  and  in  order  to  devest  the  plaintiffs  of 
their  interest,  by  surprise,  did  not  advertise  the  said  land, 
according  to  the  act,  by  the  notice  inserted  in  the  newspaper 
called  the  CatsMll  Recorder;  that  part  of  lot  No.  14,  as 
described  in  the  notice,  contained  about  fifteen  acres ;  lot 
No.  11,  which  is  not  mentioned  in  the  notice,  contains  about 
110  acres.  That  the  notice,  among  other  things,  stated, 
"•  One  other  tract  of  land  in  Canton,  now  Cairo,  part  of  lot 
No.  14,  containing  125  acres;"  that  the  direction  in  writing 
by  the  defendant  Smith,  to  the  printer,  was  to  insert  the 
notice  in  his  paper  for  three  weeks,  and  put  an  advertisement 
on  the  Court-house  door ;  and  he  thought  the  inside  the  best, 
on  account  of  damage.  That,  in  two  other  notices,  the  land 
was  described  as  follows :  "  One  other  tract  of  land  situate 
in  Canton,  now  Cairo,  lot  No.  11,  and  part  of  lot  No.  14, 
near  Persen's  mills,  containing  125  acres,  mortgaged  by 
*Henry  Persen,  6th  of  July ;"  and  one  of  the  said  notices  [  *335 
was  directed  to  be  put  up  on  the  back  of  the  writing-desk  of 
James  M '  Vickar,  in  his  store  in  Coxsackie ;  and  the  other  on 
the  outside  of  the  inner  door  of  the  house  of  Abijah  Reed, 
in  Greenville.  That  no  other  notices  were  given  by  the  de- 
fendants. That  at  the  premises  mortgaged  there  was  a  toll- 
bridge,  grist  and  saw  mills,  a  manufactory  of  cloth,  and  a 
distillery,  and  in  the  same  town,  a  large  village  and  church. 
That  Greenville  and  Coxsackie  were  remote  from  the  premises. 
That  the  commissioners  conducted  the  sale  in  a  secret  and 
clandestine  manner ;  that  the  front  door  and  windows  of  the 
Court-house  were  shut,  and  the  front  door  locked.  That 
only  two  persons  were  present  beside  the  defendants.  That 
it  could  not  be  discovered  that  any  business  was  transacting 
in  the  Court-house,  unless  the  door  is  open.  That  the  com 
missioners  would  not  give  any  information  to  the  two  bv- 

YOL.  III.  33  257 


335  CASES  IN  CHANCERY. 

1818.  standers  of  the  identity  and  situation  of  the  lot;  that  they 
bid  only  340  dollars,  and  the  same  was  struck  off  to  the 
defendant  William  Judson.  That  the  commissioners  well 
knew  the  situation  and  value  of  the  premises,  and  the  de- 
fendant Judson  attended  the  sale  at  their  request ;  that  the 
said  lot  was  put  up  for  sale  out  of  the  order  in  which  it  was 
advertised ;  that  the  commissioners  executed  a  deed  for  the 
lot  to  Judson,  who  has  brought  an  action  of  ejectment  against 
the  plaintiff  Sturgis,  which  is  now  pending.  Prayer  for  gen- 
eral relief,  and  for  an  injunction. 

The  defendants,  in  their  answer,  denied  any  knowledge  of 
the  debts  of  H.  P.  and  his  sons  to  the  plaintiffs  IV.  D.  and 
J.  K.,  or  of  the  judgments  and  mortgage,  or  the  assignment 
to  W.  D.  and  J.  K.,  or  of  the  sale  and  deed  of  the  sheriff,  &c., 
or  when  the  plaintiffs  first  knew  of  the  mortgage  to  the 
commissioners ;  but  they  averred  that  J.  K.  was  informed 
of  the  mortgage  long  before  the  sale.  They  admitted  the 
loan-office  mortgage  of  the  125  acres  of  land  in  Cairo,  by  H. 
\  *  33(5  ]  P.,  to  secure  the  payment  of  75  dollars  with  interest.  *That 
the  interest  due  in  May,  1814,  not  being  paid,  the  commis- 
sioners waited  the  time  allowed  by  the  act,  and  gave  the 
notice  stated  in  the  bill.  That  the  notice  on  the  inside  of 
the  Court-house  door  was  more  likely  to  be  preserved,  and  as 
likely  to  be  seen,  as  if  it  had  been  on  the  outside.  That  they 
did  not  know  that  there  was  any  error  or  defect  in  the  notice 
published  in  the  newspaper,  and  that  lot  No.  11  was  omitted 
by  mistake.  That  the  notice  was  put  up  in  the  two  usual 
places,  and  in  the  usual  manner;  and  they  denied  any  se- 
crecy or  collusion  in  the  sale ;  that  A.  Cook  and  J.  Bellamy 
both  bid  at  the  sale.  That  they  do  not  recollect  whether  the 
outer  door  of  the  Court-house  was  open  or  not ;  that  several 
persons  were  present  when  the  sale  commenced  ;  that  they 
gave  every  information  in  their  power,  as  to  the  lot,  and  the 
defendant  Smith  read  from  the  book  the  description  of  the 
mortgaged  premises.  That  the  defendant  Judson  did  not 
attend  the  sale  at  the  request  of  the  commissioners ;  that 
the  sale  was  conducted  in  the  usual  manner ;  and  they  de- 
nied all  collusion  with  Judson.  They  admitted  the  deed  to 
him  by  the  commissioners,  and  that  he  had  brought  an  action 
of  ejectment  against  the  plaintiff  & 

Twelve  witnesses  were  examined  on  the  part  of  the  plain- 
tiffs, who  proved  the  material  facts  charged  in  the  bill ;  and  the 
substance  of  their  evidence  is  stated  in  the  opinion  of  the  Court 
/awiory22.  The  cause  came  on  to  be  heard  in  January  last. 

Van  Buren   (attorney-general)  and   /.   V.  D.  Scott,  foi 
the  plaintiffs. 
258 


CASES  IN  CHANCERY.  33tf 

Van  Vechten  and  Van  Dyck,  for  the  defendants.  1&18 

The  case  stood  over  for  consideration  to  this  day,  when 
the  following  opinion  was  delivered  : — 

THE  CHANCELLOR.    1.  The  first  and  most  essential  object      Marck9. 
of  inquiry  in  this  case  is,  how  far  the  provisions  of  the  statute 
have  been  disregarded  or  violated  by  the  commissioners  *in       [  *  337  ] 
the  sale  in  question.     It  will  accordingly  be  necessary  to  ex- 
amine all  the  circumstances  of  the  notice  and  sale,  to  ascer- 
tain this  matter  of  fact. 

A  tract  of  land  in  the  town  of  Cairo,  in  Greene  county, 
of  the  value  of  3,000  dollars,  and  upwards,  was  mortgaged 
to  the  defendants  Smith  and  Hallenbeck,  as  commissioners, 
under  the  act  of  the  llth  of  April,  1803,  (sess.  31.  ch.  216.) 
to  secure  the  repayment  of  a  loan  of  75  dollars.  The  inter- 
est of  5  dollars,  25  cents,  due  thereon  in  May,  1814,  being  un- 
paid, the  commissioners,  by  reason  of  the  default,  became 
forthwith,  according  to  the  declaration  and  words  of  the  act, 
"  seised  of  an  absolute,  indefeasible  estate  in  the  lands,  &c., 
to  the  uses  in  the  act  mentioned,  and  the  mortgagor,  his  heirs 
and  assigns,  were  utterly  foreclosed  and  barred  of  all  equity 
of  redemption."  They  were  directed  in  such  case  to  sell  the 
lands  on  the  third  Tuesday  in  September  following,  at  the  Court- 
house of  the  county,  and  after  retaining  the  principal  and  in- 
terest of  the  mortgage,  and  the  costs,  not  exceeding  3  dollars, 
the  remainder  of  the  moneys,  if  any,  were  to  be  paid  to  the 
mortgagor,  his  heirs  or  assigns. 

The  sale  was  to  be  made  in  pursuance  of  public  notice, 
and  the  commissioners  were  directed,  in  case  of  such  default, 
and  within  eight  days  after  the  4th  Tuesday  in  May,  "  to . 
cause  advertisements  to  be  fixed  up,  at  no  less  than  three  of 
the  most  public  places  of  the  county,  describing  the  quantity 
and  situation  of  the  lands,  and  giving  notice  of  the  sale  on 
the  3d  Tuesday  in  September,  by  way  of  public  vendue,  to 
the  highest  bidder ;  and  they  were  also  to  cause  such  notice 
to  be  given  in,  at  least,  one  of  the  public  newspapers  in  the 
county." 

The  seisin  of  the  commissioners,  free  and  clear  of  the  The  commis 
equity  of  redemption,  was,  nevertheless,  as  public  agents  or  j^n^under'th'e 
trustees  for  the  people  of  the  state,  to  the  amount  of  the  ait,  '(sess.  si 
^mortgage  money,  and  for  the  mortgagor  and  his  representa-  [  *  338  ] 
lives,  in  respect  to  the  surplus.  The  right  of  the  mortga-  ch.  216.)  are,  in 
gor,  and  his  assigns,  to  the  surplus  moneys,  notwithstanding  £*selh°f  ^er[a"f 
the  statute  bar  of  the  equity  of  redemption,  was  explicitly  the  mortgagor, 

whereby     they 

became  seised  of  the  premises  clear  of  the  equity  of  redemption,  trustees  fr    the  people  to  the  amount 
due  en  the  rcertgage,  and  for  the  mortgagor,  as  to  the  surplus,  in  case  of  sale 

259 


338  CASES  IN  CHANCERY. 

1818        declared  in  the  act ;  and  the  state  and  the  mortgagor  were 
^^^-^-^^   equally  entitled  to  demand  a  due  and  faithful  performance 
DENNING      of  the  trust,  with  which  the  commissioners  were  thus  clothed. 
SMITH.  We  must  so  construe  the  act  as  to  give  effect  to  all  its 

provisions.  The  mortgagor,  after  the  default,  has  no  legal, 
(9  Johns.  Hep.  129;  14  Johns.  Rep.  362.)  and,  probably,  no 
equitable  title,  which  can  be  directly  enforced,  as  against  the 
land  itself.  But  he  has  a  valid  and  deep  interest  in  the  ex- 
ecution of  the  commissioners'  trust.  The  state  has  no  in- 
terest beyond  the  amount  of  their  loan.  All  the  surplus 
moneys  belong  to  the  mortgagor ;  and  we  are  not  willing 
to  presume  such  a  fearful  and  lamentable  defect  of  justice  as 
the  case  would  present,  if  a  mortgagor  could  not  call  in  ques- 
tion a  fraudulent  or  irregular  sale,  by  which  he  was  deprived 
of  his  surplus. 

Let  us  then  recur  to  the  proofs,  to  see  in  what  manner  the 
directions  of  the  statute  were  complied  with. 

One  of  the  advertisements  was  fixed  up  in  the  village  of 
Greenville,  about  seven  miles  northerly  from  the  lands,  in 
the  store  of  Abijah  Reed,  and  another  was  fixed  up  on  the 
back  of  the  writing-desk  of  James  M'Vickar,  standing  on  the 
counter  in  his  store  at  Coxsackie,  about  15  miles  easterly 
from  the  lands. 

The  selection  of  these  two  places  does  not  appear  to  have 
been  made  under  the  exercise  of  a  sound  discretion,  and, 
when  taken  in  connection  w7ith  many  other  circumstances,  it 
forms  a  very  material  item  in  the  mass  of  testimony,  going  to 
impeach  the  impartiality  and  integrity  of  the  sale. 

The  act  required  the  notices  to  be  put  up  in  three  u  of  the 
most  public  places  "  in  the  county  :  the  object,  doubtless,  was 
[  *339  ]     .to  diffuse,  as  widely  as  possible,  the  knowledge  *of  the  sale, 
and  of  the  cause,  and  the  subject  of  it.     The  step  was  abso- 
lutely requisite  in  order  to  do  justice  to  the  parties  concerned 
in  the  land,  and  in  the  moneys  to  arise  from  it ;  and  it  was 
a  duty  peculiarly  pressing  in  this  case,  in  respect  to  the  mort- 
gagor, considering  the  very  great  disproportion  between  the 
value  of  the  pledge  and  the  debt  charged,  and  the  general 
The  notice  of  severity  of  the  provision,  foreclosing  at  once,  upon  default, 
the6  ractUirtod  be  a^  riS^  and  equity  of  redemption.     The  commissioners  were 
fixed  up  iii  three  bound  to  use  diligence  and  judgment  in  selecting  the  public 
mean's  thafthey  places  best  calculated  to  bring  the  notice  of  sale  home  to  the 
should  be  put  mortgagor,  and  to  all  who  were  most  likely  to  enter  into 
"pLerbesS!  competition  for  the  purchase. 

cuiated  to  bring  But  here  the  commissioners  selected  two  country  stores, 
ofmsea/eeto0tthe  at  a  ?reat  distance  from  the  land,  while  it  is  proved  that  the 
mortgagor,  and  premises  were  adjoining  a  turnpike  road,  and  had,  on  and  ad 

to    all    persons 

who  are  most  likely  to  att  jnd  as  purchasers. 

260 


CASES  IN  CHANCERY.  339 

joining  them,  mills,  factories,  and  a  toll-bridge,  which  rendered        1818. 

them  a  place  of  great  notoriety.     It  is  also  shown,  that  Smith,  v^^-^^Lx 

one  of  the  commissioners,  had  frequently  passed  by  the  land,      DENNING 

and  must  have  been  acquainted  with  it.     It  is  very  extraordi- 

nary,  that  a  place  of  such  note  as  the  land  itself  should  not 

have  occurred  to  the  commissioners  as  very  suitable  for  a 

notice.     Or,  if  the  land  should  not  have  been  deemed  one 

of  the  most  fit  public  places,  the  village  of  Cairo,  which  is 

within  the  distance  of  a  mile  and  a  half  of  the  premises,  was 

a  place  of  great  notoriety.     It  is  at  the  junction  of  three 

turnpike  roads,  and  has  a  number  of  stores  and  taverns,  and 

is  the  most  central  village  in    the  county,  and  where  county 

business  is  transacted.     Why  omit  such  a  village  as  this,  so 

near  the  lands,  and  resort  to  distant  places?     I  apprehend  no 

sufficient  reason  can  be  assigned. 

The  third  notice  was  directed  to  be  upon  the  Court-house 
door.  This  place  was,  no  doubt,  judiciously  selected.  It  is, 
in  many  instances,  the  place  required  by  statute  authority 
Thus  the  notice  of  the  sale  of  mortgaged  *premises  by  the  [  *  340  J 
mortgagee,  under  a  power  contained  in  the  mortgage,  and  the 
notice  given  by  insolvent  debtors,  must  be  fixed  upon  the 
outward  door  of  the  Court-house  of  the  county;  and  the 
notice  of  the  general  election  of  governor  and  senators  is  to 
be  given  by  the  sheriffs  in  the  same  way.  In  the  very  loan 
office  act,  under  which  the  sale  was  made,  the  commissionera 
were  to  fix  up  notice  of  their  appointment,  &c.,  at  the  Court- 
house. But  there  was  a  very  peculiar  direction  given  as  to 
this  notice.  In  the  letter  from  the  defendant  Smith  to  Cros- 
well,  directing  this  notice  to  be  put  up  on  the  Court-house  door, 
lie  adds,  "  The  inside,  I  think,  is  best,  on  account  of  damage  ;" 
and  it  was,  accordingly,  affixed  up  on  the  inside  of  the  door. 
There  is  no  evidence  in  the  case  of  any  damage  having  oc- 
curred in  former  cases,  by  putting  the  notice  on  the  outside 
of  the  Court-house  door:  it  is  proved  that  notices  are  usually 
put  up  on  the  outside  of  the  door,  and  we  have  no  proof  that 
they  had  ever  before  been  put  up  on  the  inside.  The  proof 
in  this  case  is,  that  notice  on  the  inside  of  the  door  would 
not  be  visible  when  the  door  is  open,  (as  it  no  doubt  is  on 
all  public  occasions,)  because  the  door  swings  against  a  wall. 
This  concern  in  a  public  officer  about  damage  to  the  notice, 
and  assigning  it  as  a  reason  for  departing,  in  this  particula? 
case,  from  the  usual,  and  probably  from  the  universal  practice, 
is  a  very  suspicious  circumstance,  and  looks  like  premeditated 
wrong. 

The  act  further  directed  that  notice  was  also  to  be  given 
in  at  least  one  of  the  public  newspapers  in  the  county  ;  and 

261 


340  CASES  IN  CHANCERY. 

1818.       the  notice  in  this  case  was  directed  to  be  published  in  the 
v^^-v^— *^s    CafaH//  Recorder,  for  three  weeks. 
DENNING          One  objection  to  this  notice  was  the  limitation  of  it  to  three 

SM!TH.         Weeks' 

The  act  does  not  prescribe,  in  express  terms,  the  length 
of  time  the  notices  were  to  remain  fixed  up,  or  continued  in 
[*341  ]       the  paper.     It  only  declared  when  they  were  to  be  *given. 
viz.  within  eight  days  after  the  4th   Tuesday  in  May,  and 
when  the  lands  were  to  be  sold,  viz.  the  3d  Tuesday  in  Sep- 
tember.    But  I  think  the  true  construction  of  the  act  is,  that 
The  notice  of  the  notices  fixed  up  in  three  public  places,  were  to  continue 

toaltehe^rCuercon?  "  fixed  UP  "  until  the  sale-     In  a  subsequent  paragraph  of 
struction  of  the  the  act,  when  a  new  or  resale  of  the  lands  is  to  be  made,  the 
continued  "fixed  ac*  requires  at  least  "  six  weeks'  notice  "  of  the  sale  to  be  given, 
UP  at  three  pub-  in  the  manner  before  directed.     This  more  explanatory  pro- 
he  pifbiished'in  v"isi°n  as  to  the  continuance  of  the  notice  was  necessary,  be- 
n  public  news-  cause  the  time  of  first  announcing  the  notice  was  not  fixed, 
county,  m  from  and  ^  comes  powerfully  in  aid  of  the  construction  given  to 
and   after   the  the  prior  section.     If  the   commissioners  might  direct  the 
efjht days  from  n°tices  to  remain  fixed  up  only  three  weeks,  they  might,  in 
the  fourth  Tues-  the  exercise  of  their  discretion,  limit  the  time  to  three  days. 
Siy0thffoitCd  Tne  act  left  no  discretion 'with  them  on  this  point.     The 
Tuesday  of  Sep-  time  when  the  notices  were  first  to  be  put  up,  and  the  time 
o  "sale!  °f      'e  °f  sale  being  declared,  there  was  no  need  of  any  further  pro- 
Three ^weeks'  vision,  as  the  notice  was,  doubtless,  intended  to  occupy  the 
sufficient.8      >l  intermediate  time.     In  the  absence  of  proof  to  the  contrary, 
we  might  presume,  that  the  notices  fixed  up  in  the  three 
public  places  remained  up  until  the  sale  ;  but  we  have  certain 
proof  that  the  newspaper  notice  was  only  for  three  weeks,  by 
the  express  direction  of  Smith. 

This  notice  ought  to  have  been  commensurate,  in  point  of 
time,  with  the  others. 

The  words  of  the  act  are,  that  the  commissioners  shall  also 
cause  "  such  notice  "  to  be  given  in  at  least  one  of  the  public 
newspapers ;  and  it  meant  a  notice  that  was  to  correspond, 
in  description  and  duration,  with  the  notices  to  be  "  fixed  up  " 
at  the  public  places.  If  the  commissioners  had  a  control 
over  the  duration  of  the  newspaper  notice,  they  had  equally 
a  control  over  its  commencement ;  and  it  might  have  been 
deferred  until  the  day  of  the  sale.  "  Such  notice "  here 
meant  the  same  notice  with  the  others,  in  every  material 
point,  and  the  duration  or  length  of  the  notice  is  always  the 
most  material  part  of  it. 

[  *  342  ]  *Having  stated  the  facts  as  to  the  time  and  place  of  the 

notice,  we  proceed  next  to  examine  the  contents  of  the  notice, 
as  to  the  description  of  the  land. 
262 


CASES  IN  CHANCERY.  342 

In  the  notices  fixed  up  at   Greenville  and    Coxsackie,  the        \Q\S 
premises  were  described  as  being    in    Cairo,  and  as  being 
"lot  No.  11,  and  part  of  lot  No.  14,  near  Persenjs  mills,  con- 
taining  125    acres,  mortgaged  by  Henry  Persen"     In  the 
other  notice,  on  the  Court-house  door,  and  in  the  newspaper,      The    notice 
the  premises  were  described  as  a  tract   of  land  in   Cairo,  must  contain  the 
"  part  of  lot  No.  14,  containing  125  acres."     The  name  of  ^oTgago'r,  ami 
the  mortgagor  was  here  omitted,  and  the  lands  in  lot  No.  an  accurate  de- 
11    omitted,  which  contained  about  110  acres,  while  the  lands  q"antky  °  and 
in  lot  No.  14  were  but  15  acres.     The  omission  of  the  mort-  situation  of  the 
gagor's  name,  and  of  the  number  of  the  lot  in  the  advertise-  aTd  to  b^soht '' 
ments  in  Catslcill,  where  the  agent  of  the  owner  under  the 
mortgagor  resided,  was  a  most  unfortunate  circumstance,  and 
is  calculated  exceedingly  to  increase  our  apprehensions.     It 
was  also  an  omission  fatal,  in  any  view,  to  the  legality  of 
the  notice.     Indeed,  it  appears  from  the  testimony  of  Samuel 
Haight,  the  agent  of  the  plaintiff  Denning,  that  if  he  had 
discovered  from  the  advertisement  of  the  commissioners  in 
the  newspaper,  (and  which  paper  he  took,)  that  the  lands 
mortgaged  by  Henry  Persen  were  included,  he  would  have 
satisfied  the  demand . 

Upon  such  notices  the  sale  was  made.  There  were  very 
few  bidders  attracted  by  the  notice.  The  sale  was  made  in 
the  lower  entry  of  the  Court-house,  while  the  front  door  and 
windows  were  shut ;  and  when  the  commissioners  were  asked 
for  an  account  of  the  lands,  by  one  of  the  solitary  by-standers, 
they  referred  him  to  the  loan-office  books,  and  gave  no  further 
explanation. 

The  lands  in  question  were  purchased  by  the  defendant 
Jurhon,  for  about  340  dollars ;  and  it  appears,  that  he  came 
that  day  from  his  house  in  Coxsackie  to  Catskill,  and,  proba- 
bly, for  the  purpose  of  such  a  speculation. 

*2.  All  these  circumstances  combined  warrant  the  con-  [  *  343 
elusion,  that  the  commissioners  grossly  departed  from  the 
letter  and  spirit  of  the  act,  in  the  advertisement  and  sale  of 
the  lands.  Some  subsequent  circumstances  were  pressed 
upon  the  argument,  as  evidence  of  the  disposition  or  design 
of  the  commissioners,  or  one  of  them,  in  this  transaction. 
But  I  forbear  to  enlarge  on  that  point.  The  abuse  of  trust 
appears  to  me  to  have  been  too  palpable  to  be  denied,  and 
too  grievous  to  be  endured.  There  was  a  want  of  due  dis- 
cretion in  the  selection  of  the  public  places,  at  which  two  of 
the  advertisements  were  fixed  up.  There  was  an  abuse  of 
discretion  in  putting  the  notice  on  the  inside  of  the  Court- 
house door,  where  it  would  probably  be  concealed  from  the 
public;  and  it  was  so  singular  and  extraordinary  a  precauti'Wi 
as  to  afford  an  inference  of  unwarrantable  and  fraudulent 

263 


343  OASES  IN  CHANCERY. 

1818.  views.  There  was  a  defective  notice  a»  to  time,  in  being 
^*r-^~^/  confined  to  three  weeks,  in  the  CaUkill  Recorder,  and  still 
DENNING  more  defective  as  to  description,  by  totally  omitting  the  men- 
^on  °^  one  ent^re  ^>  containing  the  most  part  of  the  lands 
that  were  sold.  And,  lastly,  the  sale  itself  was  attended  with 
singular  circumstances,  calculated  to  exclude  observation  and 
if  the  com-  competition.  There  was,  upon  the  whole,  so  manifest  a 
bu'se'ih'eir8*™^"  vi°lat'on  °f  tne  intention  and  directions  of  the  act,  and  so 
this  Court  wili  great  an  injury,  in  consequence  of  it,  has  been  inflicted  upon 
either  b  •  settirf'  sucn  °f  the  plaintiffs  as  were  entitled  to  the  surplus  moneys, 
aside  the  sale,  that  I  cannot  bring  myself  to  doubt  of  the  right  of  the  party 
u"ed  mortggagor  to  relief-  The  only  difficulty  consists  in  settling  the  mod* 
to  redeem,  "or  and  extent  of  the  relief  to  be  afforded.  The  sale  must 
comm'isfiouers6  e^her  be  set  aside  as  null  and  void,  and  an  opportunity  af- 
to  account  for  forded  to  the  plaintiffs  to  redeem,  under  the  19th  section  of 
DeetweenfferC"he  *he  act,  or  the  commissioners  must  account  for  the  difference 
sum  for  which  between  the  price  that  the  lands  sold  for,  and  their  actual 

MU  '"sad  *hs  casl1  value  at  tne  time'      To  allow  the  sale  to  stand>  and  to 
real'  value    at  afford  no  relief  to  the  plaintiffs,  would  (as  the  evidence  strikes 
time.  me^  jeave  a  gtain  on  the  justice  of  *the  country.     Sales  of 

44  J  real  property  by  public  officers  of  one  description  or  another, 
iiave  become  so  frequent,  and  have  excited  such  active  cu- 
pidity, and  such  a  spirit  of  speculation,  that  there  is  very 
great  danger  of  injustice,  unless  we  support  strictly  the  checks 
and  guards  provided  by  law  against  abuse. 

I  should  have  no  difficulty,  if  that  was  the  only  alternative 
presented,  to  hold  the  commissioners  responsible  for  a  breach 
of  trust  in  the  sale  of  the  lands,  and  make  them  answei  in 
damages.  The  case  of  The  Charitable  Corporation  v.  Sutton 
(2  Atk.  400.)  would  fully  justify  me  in  going  to  that  extent. 
"I  will  never  determine,"  said  Lord  Hardwickc,  in  that  case, 
"  that  a  Court  of  equity  cannot  lay  hold  of  every  breach  of 
trust,  let  the  person  be  guilty  of  it  in  a  private  or  public  ca- 
pacity." But  I  think  the  more  appropriate  remedy  in  this 
case  is,  to  declare  the  sale  void.  It  was  not  a  sale  under  a 
judgment,  or  decree  of  a  Court  of  justice,  where  the  pur- 
chaser has  a  right  to  presume  every  thing  to  have  been  legally 
done.  In  Lloyd  v.  Jones,  (9  Vesey,  37.)  Lord  Eldon  seems 
to  have  been  of  opinion,  that  mere  irregularity,  without 
making  out  a  case  of  fraud  or  collusion  of  some  sort  or  other 
in  the  purchaser,  was  not  sufficient  to  affect  him.  Lord 
Redesdale,  in  Bennett  v.  Hamill,  (2  Sch.  fy  Lef.  566.)  adopt- 
ed the  same  idea ;  but  the  doctrine  was  applied  in  both  cases  to 
irregularity  in  a  decree,  and  those  cases  have  no  analogy  to 
the  present.  Here  was  a  special  trust  to  be  executed  by  the 
commissioners  of  loans,  for  the  benefit  of  the  state,  and  of 
the  party  ^ntitled  to  the  surplus ;  and  all  their  authority  to 
264 


CASES  IN  CHANCERY.  344 

sell  wa:?  under  the  statute  prescribing  the  mode.     If  the  sale  1818 

by  the  commissioners  would  be  valid,  upon  a  short  or  defec-  \^r-^~^s 

live  notice,  it  would  be  valid  without  any  notice;  and  this  DENNI.™ 

surely  cannot  be  maintained.     A  special  authority  must  be  g  v- 

strictly  pursued,  and  every  purchaser  is  to  be  *presumed  to  r  *  34r  1 
know  that  special  authority,  in  this  case,  for  it  is  contained  in 

j  •  <•  i  i  •  •  i  »   i  .   ,       A  special  au- 

the  act ;  and  it  he  purchases  in  a  case  m  which  that  special  thority  must  be 
authority  was  not  pursued,  he  purchases  at  his  peril.     The  slnctly  Pursued> 

1    •       1  •  1          I  11  TkT  11-1  3n"      *      pUrClia- 

notice,  which  omitted  altogether  lot  Wo.  11,  and  which  was  seris  presumed 
put  up  under  an  extreme  abuse  of  discretion,  if  not  with  a  aut|,^"°tw  ^ 
fraudulent  design,  on  the  inside  of  the  Court-house,  was  it  is  given  by  * 
before  the  eyes  of  the  purchaser  as  he  stood  in  the  inside  of  j^j1'^-  ^'"ur" 
the  Court-house  hall ;  and  ignorance  of  the  defect  and  irreg-  chases  where 
ilarity  cannot  be  pretended.  ^  jj*jjr  £ 

The  most  advisable  and  proper  remedy  for  the  case  appears  is  at  his  peril. 
o  be,  to  declare  the  sale  void,  and  to  order  the  deed  to  be 
delivered  up  and  cancelled,  and  to  continue  the  injunction 
of  the  action  of  ejectment.     This  will   be   reinstating  the 
parties  in  their  rights,  as  they  stood  prior  to  the  sale. 

The  defendant  /we/soft  does  not  put  himself  forward  as  a 
bona  fide  purchaser,  without  notice  of  any  irregularity.  He 
knew  all  that  the  commissioners  knew.  He  only  joins  with 
them  in  their  general  allegation,  that  "  they  did  not  know 
that  there  was  any  deficiency  or  error  of  description,  of  any 
kind,  in  the  notice  published  in  the  newspaper."  But  they 
do  not  say  when  they  did  not  know  of  the  defect.  Did  not 
Judson  know  of  it  before  the  sale  ?  That  he  does  not  deny. 
Besides,  the  ignorance  is  confined  to  the  newspaper  notice ; 
and  it  is  proved  that  the  same  notice  was  affixed  upon  the 
inside  of  the  Court-house  door.  If.  a  purchaser  wishes  to 
rest  his  claim  on  the  fact  of  being  an  innocent,  bona  Jide  pur- 
chaser, he  must  deny  notice,  even  though  it  be  not  charged ; 
and  he  must  deny  it  positively,  not  evasively :  he  must  even 
deny  fully,  and  in  the  most  precise  terms,  every  circumstance 
from  which  notice  could  be  inferred.  (Cason  v.  Round,  Prec. 
in  Ch.  226.  Brace  v.  Marlborough,  2  P.  Wms.  491.  See 
also  1  Johnson's  Ch.  Rep.  302,  and  the  cases  there  cited.) 

*I  cannot  entertain  any  doubt  of  the  jurisdiction  of  the  [  *  346  j 
Court  being  competent  to  afford  the  requisite  relief.  The 
jurisdiction  is  necessary  to  help  the  cestui  que  trusts,  who 
have  been  defrauded  or  unduly  deprived  of  the  surplus 
moneys,  which  were  to  arise  from  a  fair  and  regular  sale. 
They  were  compelled  to  resort  to  this  Court,  as  they  had  no 
title  at  law,  and  the  legal  title  rested  in  the  commissioners, 
free  of  the  ordinary  equity  of  redemption.  They  could  not 
nave  made  any  defence  at  law  :  all  their  right  was  a  claim  to 
the  surplus  fund,  on  a  sale  within  the  statute :  so  far  the 

VOL.  III.  34  265 


346  CASES  IN  CHANCERY. 

1818.       commissioners  were  trustees  for  them ;  and  in  that  view  the 
v^^-v^^x  plaintiffs  have  an  equitable  interest  to  be  protected.     To 
DENNING      vindicate  that  equitable  right,  the  plaintiffs  were  obliged  tc 
SMITH        aPPty  to  tms  Court ;  and  I  conclude,  with  entire  conviction, 
that  the  sales  by  the  commissioners,  to  be  valid,  must  be 
made  in  conformity  with  the  act,  and  that  they  cannot  dis- 
pense with  any  of  its  directions. 

I  shall,  accordingly,  declare,  that  the  sale  in  question  was 
made  without  the  due  public  notice  required  by  law,  and 
under  circumstances  denoting  a  fraudulent  intent  on  the  part 
of  the  defendant  Smith,  and  that  it  be  adjudged  null  and 
void ;  and  that  the  deed  executed  by  the  commissioners  to 
the  defendant  Judson,  be  delivered  up  and  cancelled ;  and 
that  the  action  of  ejectment  in  the  bill  mentioned  be  perpet- 
ually enjoined ;  and  that  the  defendants  Smith  and  Hallen- 
beck  pay  to  the  plaintiffs  their  costs  of  suit,  to  be  taxed.  . 

Decree  accordingly. 
966 


CASES  IN  CHANCERY. 


Matter  of 

*ln  the  Matter  of  EUNICE  SALISBURY,  a  .uunatic. 

In  the  management  of  a  lunatic's  estate,  the  interest  of  the  lunatic  is 
more  regarded  than  the  contingent  interest  of  those  who  may  be  en- 
titled to  the  succession.  And  the  Court,  if  it  be  for  the  interest  of  the 
lunatic,  will  direct  timber  on  the  land  of  the  lunatic  to  be  sold. 

So  the  real  estate  may  be  converted  into  personal,  or  personal  into  real, 
if  for  the  benefit  of  the  lunatic. 

PETITION  of  John  Van  Vechten,  the  committee,  stating,  Ma.  ck  9 
that  the  lunatic  is  seised  of  a  wood  lot  in  Catskill.  That 
proposals  have  been  made  to  the  committee  to  purchase  the 
wood  standing  on  the  west  corner  of  the  lot,  and  which 
corner  contains  about  five  acres.  That  the  offer  is  25  dollars 
per  acre  for  the  wood,  which,  in  the  opinion  of  the  committee, 
is  very  favorable  to  the  interest  of  the  lunatic.  That  the 
land  is  on  the  side  of  a  hill,  and  of  no  value,  except  for  the 
wood.  That  the  price  offered  is  equal  to  the  value  of  the 
land,  including  the  wood  on  it ;  and  if  cut  off*,  wood  may  grow 
up  again,  and  be  of  equal  value.  Prayer  for  an  order  to  sell 
the  wood,  according  to  the  offer. 

Affidavits  of  David  W.  Hart,  and  of  ll^illiam  B.  Salisbury, 
in  support  of  the  facts  stated  in  the  petition,  were  read ;  and 
the  master  (Robert  Dorian)  reported,  that  it  would  be  for 
the  interest  of  the  lunatic  to  accept  of  the  proposal  for  the 
purchase  of  the  wood,  as  stated. 

THE  CHANCELLOR.  It  is  settled  that  the  property  of  a 
lunatic  may  be  converted  from  real  into  personal,  when  it 
shall  appear  to  be  for  the  interest  of  the  lunatic,  without  re- 
gard to  the  contingent  interests  of  the  real  and  personal  rep- 
resentatives. The  governing  principle,  in  the  management 
of  the  estate,  is  the  lunatic's  interest,  not  that  of  those  who 
may  have  eventual  rights  of  succession.  *The  statute  of  17  '  *348 
E.  2.  (and  which  we  have  re-enacted,)  directing  that  the 
estate  should  not  be  "  wasted  or  destroyed,"  meant  injurious 
waste  or  destruction.  The  words  of  the  English  statute  are, 
sine  vasto  et  destructione.  There  may  be  cases,  as  Lord  Ross- 
lijn  observed,  in  which  to  cut  timber  on  the  estate  would  be 
no  waste.  In  the  case  ex  parte  Broomfield,  (1  Vesey,  jun. 
453.)  timber  of  the  lunatic's  estate  was  cut  by  order  of  the 
Court,  on  the  master's  report,  that  it  would  be  for  his  benefit. 
(See  the  opinion  of  Ch.  J.  De  Grey,  cited  in  2  Vesey,  jun. 
75.  note,  and  the  opinion  of  Lord  Thurloiv,  in  the  case  of 

267 


348  CASES  IN  CHANCERY. 

1818.  B.oomfield:  see,  also,  Oxenden  v.  Compton,  2  Vesey,  jun 
69  in  which  Lord  Rosslyn  considers  this  subject  very  much 
at  large.) 

So,  likewise,  the  Court  may  authorize   a  change  of  the 
property  of  infants  from  real  into  personal,  and  from  personal 
into  real,   when   it  is   manifestly   for   the   infant's  benefit 
(Notes  to  the  Earl  of  Winchelsea  v.  Norcliff,  1   Fern.  483 
Lord  Hardwicke,  in  Amb.  419.) 

In  the  present  case,  I  am  perfectly  satisfied,  that  the  timber 
had  better  be  converted  into  money,  than  left  standing.  The 
lunatic  has  been  afflicted  for  a  long  time.  She  is  not  advanced 
beyond  the  middle  stage  of  life ;  and  the  timber  may  grow 
again  fit  for  use  before  she  dies.  The  money  will  be  more 
productive  than  the  timber  left  upon  the  land.  The  case 
has  peculiar  circumstances-:  I  shall,  therefore,  grant  the  prayer 
of  the  petition. 

Order  accordingly. 


CASES  IN  CHANCERY.  #349 


*DEPAU  oo-amstf  MOSES  and  others. 


1818 

^-N^-> 

DEPAU 

v. 

MOSES. 

Vhere  the  testator  devised  his  real  and  personal  estate  to  his  executors,  for 
the  payment  of  his  debts ;  on  a  bill  for  an  account,  stating,  that  the 
executors  refused  to  distribute  the  personal  estate,  and  to  sell  and  dis- 
tribute the  proceeds  of  the  real  estate  ratably  among  the  creditors,  aud 
threatened  to  transfer  it,  to  secure  certain  favorite  creditors,  who  were 
entitled  to  no  preference  at  law  or  in  equity,  the  Court  granted  an 
injunction  to  restrain  the  executors  from  selling  or  disposing  of  the 
estate. 

But  whether  this  Court  will,  in  such  a  case,  at  the  instance  of  a  creditor, 
compel  a  ratable  distribution  of  assets  by  the  executors  ?     Qwcere. 

BILL  stating  that  the  plaintiff  sues  as  well  on  behalf  of  Mayii. 
himself  as  of  the  other  creditors  of  Isaac  Moses,  deceased,  who 
shall  come  in  and  contribute  to  the  expenses  of  the  suit ;  and 
that  Isaac  Moses,  together  with  Moses  L.  Moses  and  David 
Moses,  two  of  his  sons,  traded  under  the  firm  of  Isaac  Moses 
and  Sons,  and  became  indebted  to  the  plaintiff  and  others, 
in  divers  sums  of  money ;  to  the  plaintiff  in  4,650  dollars,  by 
a  promissory  note  to  him,  and  payable  on  the  1 5th  of  April, 
1818.  That  the  firm  became  indebted  to  various  persons,  to 
200,000  dollars  and  upwards,  and  afterwards  stopped  pay- 
ment, and  became  utterly  insolvent.  That,  subsequent  to 
such  insolvency,  the  said  Isaac  Moses  died,  on  the  16th  of 
April  last,  leaving  Mary  Moses  his  widow,  and  the  other 
two  defendants  aforesaid,  together  with  Hyman  Moses, 
Joshua  Moses,  Maria  Levy,  (wife  of  Aaron  Levy,)  Rebecca 
Moses,  Lavinia  Moses,  Sally  Moses,  and  Saul  Moses,  his 
children,  and  leaving  a  will,  whereby  he  devised  his  real  and 
personal  estate  to  his  executors,  for  the  payment  of  his  debts, 
and  particularly  of  the  debts  of  the  firm ;  and  appointed  the 
three  defendants  his  executors.  That  the  will  has  not  been 
proved,  and  is  kept  concealed  by  the  defendants,  and  the 
plaintiff  cannot  state  its  contents  more  precisely.  That,  by 
the  will,  the  real  and  *personal  estate  was  made  equitable  assets.  [  *  350 
That  the  defendants  have  refused  to  distribute  the  personal 
estate,  and  to  sell  and  distribute  the  proceeds  of  the  real 
estate,  ratably  among  the  creditors ;  but  declare,  that  they 
will  secure  certain  favorite  creditors,  tvho  have  no  legal  or 
equitable  priority,  and  will  assign  the  estate  to  some  trustee 
for  such  favorite  creditors,  in  fraud  of  the  other  creditors. 

Prayer,  that  the  defendants  may  account  with  the  plaintiff 
and  the  other  creditors,  who  shaR  come  in  and  contribute, 
and  pay  them  in  equal  and  ratable  proportions ;  and  for  an 
injunction,  restraining  the  defendants  from  selling  or  trans- 

269 


350 


CASES  IN  CHANCERY. 


1818. 

^-V-* 

DEPAU 

V. 

MUSES. 


[*351] 


ferring  the  real  and  personal  estate,  except  under  the  direc- 
tion of  this  Court,  and  that  they  may  be  compelled  to  sell 
the  real  and  personal  estate  under  such  direction,  and  bring 
the  proceeds  into  Court,  to  be  applied  to  the  entire  or  rata- 
ble payment  of  the  plaintiffs,  and  such  other  creditors  as  shall 
come  in  and  contribute  as  aforesaid,  and  that,  until  such  sales, 
a  receiver  may  be  appointed  to  receive  the  rents,  issues,  and 
profits,  &c. 

T.  A.  Emmet,  for  the  plaintiff,  moved  for  an  injunction, 
on  the  ground  that  the  will  made  the  real  estate  equitable 
assets,  and  that  the  personal  estate  was  devised  for  the  pay- 
ment of  the  debts.  Independent  of  the  will,  he  contended, 
that  equity  would  enforce  equality  in  the  application  of  assets, 
and  referred  to  the  opinion  of  Sir  J.  Mansfield,  in  1  Campbell's 
N.  P.  148,  and  who,  he  said,  was  one  of  the  best  chancery 
lawyers  in  England,  in  his  day. 

He  contended,  that  equity  would  equally  restrain  a  creditor 
from  seeking,  by  legal  process,  to  acquire  a  preference,  and 
an  executor  from  giving  it  voluntarily ;  that  chancery  even 
would  consider  deeds  for  the  purpose  of  preferring  creditors 
who  had  no  legal  or  equitable  priority  as  fraudulent. 


*THE  CHANCELLOR,  without  giving  any  opinion    on  the 
suggestions  of  the  counsel,  thought  the  bill  contained  ground 
for  an  injunction,  and  referred  to  what  he  had  said  in  the 
t  Ante,  p.  «;    case  of  M'Kay  v.  GVem.f 

Injunction  granted. 
270 


CASES  IN  CHANCERY.  35, 

1818. 

DUNCAI« 

DUNCAN  against  LYON. 

[Approved,  72  Mo.  647;  6  Johns.  Ch.  322.    Reviewed,  4  Johns.  Ch.  13.] 

After  a  verdict  at  law,  the  party  comes  too  late  with  a  bill  of  discovery. 
After  a  trial  at  law,  or  a  report  of  referees,  a  party  cannot  have  the  aid 

of  this  Court,  unless  he  can  impeach  the  justice  of  the  verdict  or  re- 

port, by  facts  or  on  grounds  of  which  he  could  not  have  availed  him- 

self before,  or  was  prevented  from  doing  it  by  fraud  or  accident,  or 

by  the  act  of  the  opposite  party,  without  any  negligence  or  fault  on 

his  part. 
A  set-off  is  not  allowed  where  the  demand  is  for  uncertain  damages 

arising  from  a  breach  of  covenant. 
A  Court  of  equity  follows  the  same  general  rules  as  a  Court  of  law, 

as  to  set-off. 

There  must  be  mutual  debts  to  authorize  a  set-off. 
Equity  has  not  an  exclusive  jurisdiction  between  copartners  in  matters 

of  account. 
An  action  of  account  lies  at  law,  by  one  partner,  against  his  copartner  ; 

and  it  seems,  that  there  is  no  good  reason  why  that  action  is  not, 

sometimes,  resorted  to,  instead  of  a  bill  in  equity. 
An  action  of  covenant  at  law  lies  by  one  partner  against  another,  where 

the  articles  contain  a  covenant  to  account. 


THE  bill,  filed  August  27th,  1817,  stated,  in  substance, 
that  the  plaintiff  and  defendant  entered  into  an  agreement 
under  seal,  dated  the  20th  of  July,  1809,  which  was  set  forth 
in  this  bill,  and  which  related  to  the  plaintiff's  furnishing 
timber,  &c.,  which  the  defendant  was  to  take  to  Montreal  or 
Quebec,  &c.,  and  to  pay  the  plaintiff  half  the  proceeds,  &.C., 
and  furnish  him  with  an  account  thereof,  &c.  The  bill  then 
detailed,  at  length,  the  transactions  and  conduct  of  the  de- 
fendant, &c.,  and  stated,  that  the  plaintiff,  before  and  since 
1809,  was  a  resident  at  Schenectady,  and  had  no  opportunity, 
from  personal  inspection,  *of  becoming  acquainted  with  the  [  *  352  ] 
acts  of  the  defendant.  That  the  plaintiff  is  willing  to  come 
to  a  fair  account  with  the  defendant,  and  make  all  just  allow- 
ances ;  but  the  defendant  refuses  to  render  to  the  plaintiff 
any  detailed  accounts  of  his  transactions,  and  has  sued  the 
plaintiff  at  law,  in  an  action  of  covenant  on  the  agreement, 
and  alleged  breaches,  &c.,  to  which  the  plaintiff  pleaded  the 
general  issue,  and  gave  notice  of  special  matter  to  be  given  in 
evidence,  &c.  The  bill  contained  a  particular  interrogatory, 
that  the  defendant  may  discover  and  set  forth  a  detailed 
account  of  all  the  staves  and  lumber,  &c.,  and  the  sales,  &c. 

That  the  defendant,  under  an  affidavit,  that  the  suit  at  law 
would  require  the  examination  of  a  long  account,  obtained 
an  order  of  the  Supreme  Court  for  a  reference,  and  had 
noticed  the  cause  for  a  hearing,  before  the  referees,  on  the 

271 


352  CASES  IN  CHANCERY. 

1818.       28th  of  August,  1817.     "That  the  plaintiff  cannot  make  out 
v^-v^-^^/  his  defence,  nor  obtain  a  report  of  the  referees  in  his  favor, 
DUNCAN       from  the  account  of  the  defendant  'being  fraudulently  with- 
LYON         held,  and  from  the  facts  stated,  which  are  essential  to  his 
defence  and  set-off,  resting,  in  a  great  measure,  in  the  knowl 
edge  of  the  defendant,  and,  therefore,  not  to  be  made  out  but 
from  a  full  discovery  of  the  defendant."     Prayer,  that  the 
defendant  may  be  decreed  to  come  to  a  fair' and  just  account 
with  the  plaintiff,  and  to  pay  what  shall  appear  to  be  due  to 
him,  and  for  an  injunction  to  stay  proceedings  at  law,  &c 
The  injunction  was  granted  the  27th  of  August. 

The  answer  of  the  defendant,  filed  October  21ot,  1817, 
after  giving  a  minute  detail  of  the  transactions,  which  it  is 
unnecessary  to  notice,  stated,  that  the  plaintiff  owed,  on  the 
account,  425  dollars  and  32  cents,  over  and  above  the  great 
damages  he  had  sustained  by  occasion  of  the  refusal  of  the 
plaintiff  to  perform  his  part  of  the  contract.  That  the  de- 
fendant sued  the  plaintiff  at  law,  in  January,  1816,  in  an 
action  of  covenant  on  the  agreement,  and  assigned  breaches 
[  *  353  ]  in  *his  declaration  ;  that  the  plaintiff  pleaded  and  gave  notice 
of  special  matters  of  defence ;  that  the  issue  was  joined  in 
July,  1816;  that  the  Supreme  Court  ordered  a  reference  of 
the  cause,  and  the  plaintiff  nominated  one  of  the  referees , 
that  in  October  term,  1816,  another  referee  was  appointed, 
in  the  stead  of  the  one  chosen  by  the  plaintiff;  and  in  Maij 
term,  1817,  other  referees  were  appointed,  one  of  whom  was 
nominated  by  the  plaintiff.  That,  on  the  7th  of  August,  the 
cause  was  regularly  noticed  for  a  hearing  on  the  28th  of 
August,  before  the  referees.  That  the  referees  met  on  that 
day,  and  heard  the  proofs  and  allegations  of  the  defendant ; 
that  no  person  appeared  on  the  part  of  the  plaintiff;  and 
the  referees  reported  in  favor  of  the  defendant  for  2,500 
dollars,  damages,  and  delivered  their  report  to  him ;  that 
about  three  or  four  hours  after  the  report  was  delivered,  the 
injunction  obtained  in  this  cause  was  served. 

That,  on  the  hearing  before  the  referees,  the  defendant 
gave  in  evidence  a  true  account  of  the  moneys  for  which  all 
the  timber  he  had  taken  from  the  lands  of  the  plaintiff  was 
sold,  &c. ;  a  true  account  of  the  expenses  in  and  about  the 
same,  &,c. ;  the  original  covenant  between  the  parties ;  the 
lease  to  J.  S. ;  the  order  of  the  plaintiff,  forbidding  the  de- 
fendant to  take  timber  after  the  lease ;  the  seizure  by  J.  S. 
under  that  order,  and  prosecutions  by  him ;  and  the  refusal 
of  the  persons  employed  by  the  defendant  to  work,  after 
such  prohibition,  &c. 

The  defendant,  on  the  25th  of  March,  1818,  put  in  a 
further  answer  to  the  plaintiff's  bill. 
272 


CASES  IN  CHANCERY. 


353 


Cadi/,  for  the  defendant,  now  moved  that  the  injunction, 
heretofore  issued  in  this  cause,  be  dissolved  ;  and  if  not,  that 
leave  be  granted  to  the  defendant  to  enter  up  judgment  on 
the  report  mentioned  in  his  answer,  or  that  the  plaintiff  bring 
into  Court  and  deposit  a  sum  equal  to  the  amount  reported 
in  favor  of  the  defendant. 

*He  contended,  that  the  equity  of  the  bill  was  fully  denied 
by  the  defendant's  answer ;  and  that  the  plaintiff  ought  to 
have  made  his  defence,  if  he  had  any,  to  the  suit  at  law 
before  the  referees.  This  Court  cannot  award  a  rehearing 
before  the  referees.  If  the  plaintiff  wanted  a  discovery  to 
aid  him  in  his  defence  at  law,  he  ought  to  have  applied  sooner  ; 
that  he  had  been  guilty  of  gross  negligence,  and  if  the  ref- 
erees heard  the  cause  ex  parte,  it  was  owing  to  the  wilful 
and  inexcusable  default  of  the  plaintiff,  who  had  due  and 
regular  notice  of  the  time  and  place  of  hearing  before  the 
referees.  That  this  is  not  the  case  for  a  set-off,  as  the  claim 
of  the  defendant  was  for  uncertain  and  unliquidated  damages, 
arising  ex  delicto.  This  Court  could  not  assess  the  damages. 
There  could  be  no  set-off  here  in  such  a  case,  any  more  than 
at  law ;  but  the  principles  of  set-off  were  the  same  at  law  as 
in  equity;  that  no  unliquidated  damages  could  be  set  off. 
He  cited  1  Johns.  Ch.  Rep.  320.  432.  465.  2  Johns.  Ch. 
Rep.  228.  552.  1  Madd.  Ch.  108.  315.  3  Aik.  223.  1 
Cairns' s  Rep.  141.  3  Vesey,  248.  1  Vernon,  176.  Neivland's 

Ch.  Pr.  100. 

* 

/.  V.  Henry,  contra,  contended,  that  this  was  a  case  of 
partnership  which  repelled  every  objection  to  set-off.  The 
injunction  issued  before  the  report  of  the  referees ;  and  the 
hearing  before  them  was  altogether  ex  parte.  That  in  equity 
a  set-off  will  be  allowed,  when  it  would  not  be  permitted  at 
law.  That  this  is  a  case  of  mutual  claims,  under  a  partnership 
agreement,  arising  from  the  acts  of  the  parties  relative  to  the 
«ubiect  matter  of  the  partnership.  It  is  a  case  of  partnership 
account,  and  the  breaches  of  the  articles  of  partnership  must 
be  ascertained  on  a  reference  to  a  master,  or  by  an  issue. 
The  uncertainty  of  the  damages  on  the  breaches  of  the  part- 
nership contract,  is  no  objection  to  the  jurisdiction  of  the 
Court.  Partnership  dealings  are  the  proper  subjects  of 
equitable  interference,  and  a  Court  of  law  will  not  direct 
an  account  to  be  taken  between  partners.  The  jurisdiction 
*of  this  Court  attached  on  the  filing  of  the  bill.  Nothing 
but  gross  negligence  draws  after  it  a  loss,  in  equity.  He 
cited  Montague  on  Set-off,  Append.  68,  and  notes.  1  Mad. 
Ch.  75.  3  Bos.  fy  Pull.  289.  Watson  on  Partner.  60.  7 
East,  353.  356.  1  Johns.  Ch.  Rep.  65.  103. 

VOL.  ITI.  35  273 


1818. 


DUNCAN 

v. 
LYON. 

May  II. 
[  *  354 


[*355 


355 


CASES  IN  CHANCERY. 


1818. 


LYON. 


THE  CHANCELLOR.     The  reasons  which  have  been  sug 
gested,  or  which  have  occurred  to  me,  for  retaining  the  in- 
DUNCAN       junction,  may  be  arranged  under  the  following  heads : — 

1.  That  the  plaintiff  did  not  make  his  defence  before  the 
referees,  and  that  the  recovery  is  unjust. 

2.  That  his  demands  against  the  defendant  ought  to  be 
liquidated   and   admitted,   by   way   of  set-off  against   that 
recovery. 

3.  That  the  demands  of  the  parties  all  arise  out  of  part- 
nership articles,  and  ought  to  be  heard  together,  and  adjusted 
in  this  Court. 

1.  The  bill  was  not  strictly  a  bill  of  discovery,  for  it  had  a 
prayer  for  relief,  and  yet  the  necessity  of  a  discovery  would 
seem  to  have  been  the  cause  and  chief  object  of  the  bill.  It 
stated,  that  the  plaintiff  had  been  sued  at  law,  and  that  issue 
had  been  joined,  and  a  reference  awarded  ;  and  it  then  added, 
that  he  "  could  not  make  out  his  defence,  nor  obtain  a  report 
of  the  referees  in  his  favor,  from  the  account  of  the  defendant 
having  been  fraudulently  withheld,  and  from  the  facts  essen- 
tial to  the  defence  and  set-off  resting,  in  a  great  measure,  in 
the  knowledge  of  the  defendant,  and,  therefore,  not  to  be 
made  out  but  from  a  full  discovery  of  the  defendant."  This 
is  the  language  of  a  bill  of  discovery  ;  and  I  take  it  for  granted, 
that  this  plain  and  avowed  purpose  was  the  ground  of  the 
allowance  of  the  injunction.  But  it  appeared,  afterwards, 
that  the  bill  was  filed  too  late  for  such  an  object,  provided 
the  discovery  was  intended  to  have  been  used  before  the 
A"er  a  ver-  referees.  After  a  verdict  at  law,  a  party  comes  too  late  with 
party^omes'too  a  bill  °f  discovery.  (Barbone  v.  Brent,  1  Fern.  176.) 
late  with  a  bill  *There  is  no  reason  assigned  why  the  bill  was  not  pre- 
sented before  the  27th  of  August,  being  only  the  day  before 
the  one  for  which  notice  of  the  hearing  at  the  reference  had 
been  given.  It  now  appears,  that  the  referees  met  on  the 
day  appointed,  and  heard  the  cause  in  the  absence  of  the 
plaintiff;  and  that  they  had  made  their  report,  and  delivered 
it  to  the  defendant,  some  hours  before  notice  of  the  injunction 
was  served.  The  cause  (as  it  appears  from  the  answer  to 
that  part  of  the  bill  relative  to  the  suit  at  law)  had  been  at 
issue  above  a  year ;  and  the  Supreme  Court  had,  at  three 
different  terms,  been  applied  to,  in  respect  to  the  appointment 
of  referees,  and  in  two  instances,  one  of  the  referees  had 
been  nominated  by,  or  on  behalf  of,  the  present  plaintiff. 
The  notice  of  the  reference  had  also  been  duly  given,  aa 
early  as  the  7th  of  August,  and  yet  no  bill  was  filed,  or  ap- 
plication for  an  injunction  made,  until  the  27th  of  August. 
Here  was  extreme  delay  on  the  part  of  the  plaintiff,  in  the 
274 


CASES  IN  CHANCERY. 

exhibition  of  his  bill,  whether  the  object  of  the  bill  was  dis-        1818 
covery  in  aid  of  the  defence  at  law,  or  whether  it  was  for  -^r-^**+ 
final  relief  here.     If  a  party  will  not  apply  in  due  season  to       DUNCAN 
this  Court,  and  appears  to  have  had  sufficient  time,  and  suf- 
ficient  information  to  enable  him  to  do  it,  the  case  stands 
precisely  on  the  same  ground  as  if  he  had  applied  after  the 
trial  or  reference  at  law. 

It  is  a  settled  principle,  that  a  party  will  not  be  aided 
after  a  trial  at  law,  unless  he  can  impeach  the  justice  of  the      After  a  tria. 
verdict  or  report,  by  facts,  or  on  grounds  of  which  he  could  at  ,lav,'  ?r  re 

i  •!     i    i  •          i  f  -if  •          •     i        Port  <"  referees, 

not  have  availed  himself,  or  was  prevented  trom  doing  it  by  a  party  cannot 
fraud  or  accident,  or  the  act  of  the  opposite  party,  unmixed  ['^Court^un' 
with  negligence  or  fault  on  his  part.  This  point  has  been  so  less  he  can  im 
often  ruled,  that  it  cannot  be  necessary  or  expedient  to  dis-  {^of'tiie  vel 
cuss  it  again  ;  and  it  is  one  by  which  I  *mean  to  continue  to  r  *  357  i 
be  governed.  In  some  of  the  cases  in  this  Court,  referred  diet  or  report, 
to  by  the  defendant's  counsel,  it  was  shown  to  be  the  rule  of  j^J^s8' or  °" 
the  English  chancery,  and  it  appears  also  to  have  been  fre-  which  he  could 
quently  noticed  and  recognized  in  the  Courts  of  equity  in  this  ™jl  j^seit^or 
country.  (Marshall,  Ch.  J.,  in  Marine,  Insurance  Company  v.  was  prevented 
Hodgson,  7  Cranch,  336.  Chancellor  Desaussure,  in  Winthrop  f^j  J1  acj£ 
and  others  v.  Lane  and  others,  3  Desaussure' s  Rep.  324,  325.  dent,  or  the  act 
Noland  v.  Cromwell,  4  Munf.  155.)  If  the  principle  was  to  Jar*°  °wft£ 
be  materially  relaxed,  the  departure  from  it,  as  I  apprehend,  any  negligence 
would  soon  be  perceived  and  felt  to  be  a  great  public  griev-  ™t™] 
ance,  by  encouraging  negligence,  protracting  litigation,  ex- 
hausting parties,  and  drawing  within  the  cognizance  of  this 
Court  the  general  review  of  trials  at  law. 

There  is  nothing  before  me  impeaching  the  justice  of  the 
report  of  the  referees.  If  the  suit  there  was  in  a  case  of 
which  a  Court  of  law  had  jurisdiction,  (and  which  point 
1  shall  presently  consider,)  I  do  not  know  of  any  ground 
entitling  the  plaintiff  to  the  continuance  of  his  injunction. 
If  there  be  any  sufficient  cause  for  a  rehearing,  or  for  setting 
aside  the  report,  he  will  have  an  opportunity  of  applying  to 
the  Supreme  Court,  which  has  competent  powers  for  the 
purpose,  as  the  report  has  not  as  yet  been  made  to  that  Court, 
and  confirmed.  I  do  not  think  I  ought  to  assume  the  control 
of  a  matter  of  relief  which  has  previously  attached,  and  fitly 
belongs  to  that  jurisdiction. 

2.  The  matters  of  account  stated  in  the  bill  were  not 
proper  subjects  of  set-off  in  the  action  of  covenant ;  and  if 
the  discovery  had  been  obtained  in  season,  I  presume  it  would 
not  have  aided  the  defence.  The  breaches  assigned  in  the 
action  at  law  were,  that  the  plaintiff  had  refused  to  perform 
his  part  of  the  covenant,  in  furnishing  timber  and  provisions, 

275 


358*  CASES  IN  CHANCERY. 

1818        &c-»  and  the  demand  at  law  was  in  the  nature  of  redress  foi 
>.^-v^*_^  a  wrong  or  injury  committed,  and  not  for  a  debt  due.     It 
DUNCAN       rested    entirely    in    uncertain    and   ^unliquidated   damages. 
LYON.        There  cannot  be  a  set-off  even  of  a  debt  against  the  demand 
of  the  plaintiff,  unless  that  demand  be  of  such  a  nature  that 
it  could  be  set  off  by  a  debt,  if  it  existed  in  him.     There  must 
be  mutual  debts.     This  is  the  settled  doctrine  in  the  Courts 
A  set-off  is  of  law.     (Colson  v.  Welsh,  1  Esp.  N.  P.  Rep.  378.)  Lord 
w°here  the^de^  Mansfield  said,  in  Howlet  v.  Strickland,   (Cowp.  Rep.  56.) 
mand  is  for  un-  that  not  only  the  statute,  but  the  reason  of  the  thing,  related 
ge«  arisinglrom  to  mutual  debts  only,  and  that  unliquidated  or  uncertain 
a  breach  of  cov-  damages,  arising  from  a  breach  of  covenants,  were  no  debts. 
The  same  doctrine  was  held  in  Weigall  v.  Waters,  (6  Term 
Rep.}  and  in  Gordon  v.  Bowne,  (2  Johns.  Rep.  150.) 
A  Court  of       The  same  rule  prevails,  also,  in  Courts  of  equity.     The 
SE^    foU°iT!  Practice  mayj  perhaps,  be  more  liberal  in  respect  to  mutual 
rai  rules  as  a  credits,  but  there  is  ho  case  in  which  a  set-off  has  been  allowed, 
^"to'set-off^'  wnere  *ne  demand  was  for  uncertain  damages  arising  on  a 
breach  of  covenant.     The  Courts  of  law  and  equity  follow 
the  same  general  doctrines  on  the  subject  of  set-off.     This 
appears  from  the  opinion  of  Sir  Thomas  Clarke,  in  Whitdker 
v.  Rush.  (Amb.  407.)     The  cases  of  Ex  parte  Stevens,  and 
Ex  parte  Hanson,  (14  Ves.  24.  12  Fes.  346.)  only  established 
that,  under  certain  circumstances,  there  may  be  a  set-off  in 
equity,  when  there  can  be  none  at  law ;  and  as  late  as  the 
case  of  Addis  v.  Knight,  (2  Merivale,  121.)  it  was  observed, 
by  the  master  of  the  rolls,  that  in  equity,  as  well  as  at  law, 
a  joint  could  not  be  set  off  against  a  separate  demand.     Until 
the  statute  of  2  Geo.  II.  Courts  of  equity  followed  the  rule 
of  law,  and  would  not  allow  mutual,  unconnected  debts  to 
be  set  off.     "  If  they  had  done  otherwise,"  said  Lord  Mans- 
field, in  Green  v.  Farmer,  (2 Burr.  1214.)  "they  would  have 
stopped  the  course  of  law,  in  all  cases  where  there  was  a 
mutual  demand."     It  was  the  observation  of  Lord   Hard- 
ivicke,  (1  Afk.  237.)  that  he  did   not  know  that  a  Court  of 
equity  had  gone  further  than  the  Courts  of  law,  in  cases  of  a 
set-off. 

[  *  359  J  *The  doctrine  of  set-off  was  borrowed  from  the  doctrine 

of  compensation  in  the  civil  law.  Sir  Thomas  Clarice  shows 
the  analogy,  in  many  respects,  on  this  point,  between  the 
two  systems ;  and  the  general  rules  in  the  allowance  of  com- 
pensation or  set-off  by  the  civil  law,  as  well  as  by  the  law  of 
those  countries  in  which  that  system  is  followed,  are  the  same 
as  in  the  English  law.  To  authorize  a  set-off,  the  debts  must 
be  between  the  parties,  in  their  own  right,  and  must  be  of  the 
same  kind  or  quality,  and  be  clearly  ascertained  or  liquidated 
276 


CASES  IN  CHANCERY.  359 

They  must  be  certain  and  determinate  debts.     (Dig.  16.  2.        1818. 
de    Compensationibus,    Code  4.    31.  14.  and  Code  5.  21.  1.  ^^^^-^_x 
ErsJc.  Inst.  vol.  2,  525.  527.  Pothier,  Trait,  des   Oblig.  No.       DUNCAN 
587.  to  605.     Ferriere.  sur  Inst.  torn.  6.  110.  113.)  LYVOM 

Courts  of  equity,  before  the  statute  of  Geo.  II.,  (and  when     There    must 
Courts  of  law  had  no  power  on  the  subject,)  have  enforced  a  be  mutual  debt* 
set-off,  after  judgment  of  law,  where  it  clearly  appeared  to  Set-oir. 
have  been  the  intent  of  the  parties,  that  the  one  demand 
should  be  set  off  against  the  other.     Lord  Macdesfield,  in  a 
strong  case  of  this  kind,  (Hawkins  v.  Freeman,   2  Eg.  Cas. 
Abr.  10.  pi.  10.     8  Finer,  560.  pi.  26.)  interfered  with  hesi- 
tation, and  put  his  interference  on  the  ground  of  the  manifest 
intent. 

I  observed  that  the  practice  might  be  more  liberal  in  cases 
of  mutual  credit;,  and  for  the  more  accurate  understanding  of 
that  observation,  I  would  refer  to  the  case  Ex  parte  Deeze, 
(1  Atk.  228.)  in  which  it  was  held  by  Lord  Hardwicke,  that 
if  a  man  had  a  debt  due  from  a  bankrupt,  and  had,  at  the 
same  time,  goods  of  the  bankrupt  in  his  hands,  which  could 
not  be  got  from  him  without  the  assistance  of  law  or  equity, 
the  assignees  ought  not  to  take  them  from  him,  without  sat- 
isfying his  whole  debt.  Mutual  credit  was  not  to  be  confined 
to  pecuniary  demands,  but  it  reached  to  a  case  like  this,  of 
goods  in  the  hands  of  the  creditor.  This  case  was  cited  by 
Ch.  J.  Gibbs,  in  Olive  v.  Smith,  (5  Taunton,  56.)  as  a  just 
decision;  and  he  observed,  that  this  *case,  and  the  doctrine  [ 
in  it,  had  always  been  supported.  Where  one  party, -being 
indebted  to  another,  intrusts  that  other  with  goods,  it  was  a 
case  of  mutual  credit ;  and  the  statute  of  30  Geo.  II.  c.  5. 
has  been  carried  beyond  money  transactions,  and  extended 
to  cases  of  mutual  trust.  (4  Term  Rep.  211.)  (a) 

If  the  recovery  at  law  is  to  be  taken,  under  this  present 
motion,  as  a  just  recovery,  then  it  would  be  unreasonable  to 
delay  the  defendant  until  the  accounts  between  the  parties 
can  be  taken  and  stated,  and  the  balance  struck  in  this  Court. 
One  judgment  may  be  set  off  against  another ;  but  here  is  a 
demand  on  one  side  raised  to  a  debt  certain  by  a  legal  as- 
sessment, and  an  uncertain  claim  on  the  other,  depending  on 
a  settlement  of  accounts.  Those  accounts  were  not  the  sub- 
ject of  set-off;  and  there  is  no  case  to  warrant  me  to  stay 

(a)  These  are  bankrupt  cases,  arising  under  the  statute  of  bankruptcy, 
which  speaks  of  mutual  credits.  The  statute  of  2  Geo.  II.  ch.  22.  s.  13, 
which  first  allowed  set-offs  at  law,  speaks  only  of  mutual  debts;  and  the 
language  of  our  act,  previous  to  the  late  revision,  was,  "  that  if  two  or  more 
persons,  dealing  together,  be  indebted  to  each  other,"  &c.  (L.  N.  Y.  1  K.  and 
R.  347.)  In  the  revised  act  (sess.  36.  ch.  56.  s.  1.  1  JV.  R.  L.  515.)  the  words 
tre  "  that  if  two  or  more  persons,  dealing  together,  be  indebted  to  each 
other,  or  have  demands  arising  on  contract  or  credit  againfl  each  other." 


360  CASES  IN  CHANCERY. 

1818.  execution  on  the  one  demand  until  the  other  is  settled,  and 
in  a  condition  to  be  set  off.  It  may  be  a  long  time  before  the 
accounts  between  these  parties  can  be  stated,  and  the  balance 
struck  ;  and  until  that  be  done,  it  cannot  be  known  even  on 
which  side  the  balance  will  fall. 

The  only  colorable  ground  against  the  motion  is,  that  the 
demands  on  each  side  arise  out  of  partnership  articles ;  and 
that  the  cognizance  of  the  whole  case  belongs,  properly,  if  not 
exclusively,  to  this  Court. 

But,  I  do  not  find,  that  even  matters  of  account  between 

Equity    has  copartners,  belong  exclusively  to  this  Court,  though,  in  prac- 

j°risdictionSbe-  ^ce>  tnev  mav  be  confined  here.     Courts  of  law  and  equity 

tween    copart-  have  concurrent  jurisdiction  in  matters  of  account ;  and  it  is 

[  *  361  ]       conceded,  that  an  action  of  account  at  law  may  *be  brought 

ners  in  matters  by  one  partner  against  another.     (Co.  Litt.  171.  a.  Montague 

An  action  of  on  Partnerships,  vol.   1 .  45.)     In  that  action,  the  auditors 

account  may  be  have  all  the  requisite  powers,  for  they  can  compel  the  parties 

brought  at   la\v    .  •         i  i  .1  i    T  i 

by  one  pjfrtner  to  account,  and  to  be  examined  under  oath ;  and  I  have  not 
against  another,  been  able  to  discern  any  good  reason  why  that  action  has  so 
pears  tcTbeTo  totally  fallen  into  disuse,  (a)  The  practice,  also,  under  the 
good  reason  statute,  of  appointing  referees  in  matters  of  account,  is  a  new 

why  that  action  •        *T  £  c  i  j  •*. 

is  not  resorted  power  given  to  our  Courts  ol  law  ;  and  it  would  seem  to  ren- 
te, instead  of  E  der  the  cognizance  of  such  causes  much  more  suitable  for  a 
Court  of  law  here,  than  in  England.  This  Court  has  no 
better  mode  of  settling  accounts  than  by  referees ;  and  it  is, 
in  many  cases,  under  the  necessity  of  appointing  a  merchant, 
or  other  skilful  accountant,  to  assist  the  master  in  taking  and 
stating  the  accounts.  Lord  Hardwicke  once  said,  (2  Aik. 
144.)  that  the  House  of  Lords  frequently  made  such  references 
in  matters  of  account,  and  he  thought  it  the  most  proper 
method  in  a  case  then  before  him.  In  Chapman  v.  Koops, 
(3  Bos.  fy  Pull.  289.)  the  undivided  interest  of  one  partner 
was  taken  on  execution,  and  the  C.  B.  refused  to  make  an 
order  of  reference  to  their  prothonotary  to  take  the  partner- 
ship account,  and  the  judges  considered  that  such  a  step 
would  be  assuming  equity  jurisdiction.  In  that  case,  and  in 
such  a  collateral  way,  the  measure  proposed  would  have  been 
changing  the  character  of  the  Court ;  and,  doubtless,  it  had 
not  the  jurisdiction  in  the  mode  asked  for.  But  if  such  a 
point  had  directly  arisen  in  the  action  of  account,  no  such 

(a)  Vide  Godfrey  v.  Saunders,  (3  Wils.  73—117.)  in  which  Ch.  3.  Wilmot  said, 
he  was  glad  to  see  this  action  of  account  revived  in  that  Court.  Some  of  the 
objections  to  this  old  common-law  remedy  were  obviated  by  the  stat.  4  Jinn. . 
?h.  16.  s.  27,  which  allowed  it  between  joint  tenants  or  tenants  in  common, 
and  against  their  executors  and  administrators  ;  and  the  auditors  are  empow  • 
ered  to  administer  an  oath,  and  examine  the  parties  on  oath,  touching  the 
matters  in  question.  (1  Selw.  JV.  P.  1.  1  Bac.  Mr.  Jlccompt.)  The  same 
provisions  are  to  be  found  in  our  statute.  (Sess.  11.  ch.  4.  1  JV.  R.  L.  90.) 

278 


CASES  IN  CHANCERY  *362 

objection  could  have  been  *made,  and  auditors  would  have        1818. 
been  appointed.     I  believe,  that  the  action  of  assumpsit  has  x-x~v-^' 
never  been  carried  further,  between  partners,  than  to  the  case       DUNCAN 
of  an  account  stated,  and  a  promise  by  one  of  them  to  pay        L^N 
to  the  other  the  balance  struck.     (Foster  v.  Allanson,%  Term     An  action  of 
Rep.  479.     Moravia   v.    Levy,   2    Term   Rep.   483.  note.)  covenant  lies  ai 
Whether  the  action  of  assumpsit  may  not  be  further  extended,  paaTtner  ^gahTJt 
(for  it  is  a  very  liberal  and  remedial  action,)  so  as  to  reach,  another,  where 
and  carry  into  effect,  the  general  powers  of  a  Court  of  law,  t^ere  is'a  cove- 
of  settling  account,  by  referees,  it  is  not  for  me  to  determine,  nant  to  account. 
It  is  sufficient,  for  the  present  purpose,  that  the  defendant 
had  a  suitable  action  at  law  provided  for  his  case,  and  that 
the  action  of  covenant  mentioned  in  the  pleadings  was  well 
brought ;  and  the  cases  I  have  referred  to,  in  the   Term  Re- 
ports, admit,  that  if  the  parties  enter  into  articles  of  copart- 
nership within  a  covenant  to  account  at  stated  times,  an  ac- 
tion at  law  will  lie  upon  the  covenant.     We  meet  also  with     And  an  «.?- 
the  same  doctrine,  applied  even  to  an  action  of  assumpsit,  in  ^^"ie  on^a 
Penning  v.  Leckie.  (13  East,  7.)     That  was  an  action  of  as-  promise  in  wri- 
sumpsit  on  a  promise  in  writing  to  take  part  of  certain  goods,  pinner,  to  take 
bought  by  the  plaintiff  on  joint  account,  and  for  which  they  part  of  goods 
were  to  be  equally  concerned  in  the  profit  and  loss.     It  was  th^werTio  be 
objected,  that  this  was  a  partnership,  and  that  no  action  lay  equally     con- 
by  one  partner  against  the  other ;  but  the  Court  said,  that  profiTanfMos*1 
there  were  many  deeds  of  copartnership  in  which  the  partners 
covenanted  each  to  advance  a  certain  sum,  and  that  an  action 
at  law  would  lie  to  enforce  the  covenant,  though  there  were 
accounts  between  them  afterwards,  which  would  require  un- 
ravelling in  equity. 

These  cases  approach,  in  principle,  to  the  one  under  dis- 
cussion ;  and  though  the  plaintiff  may  be  entitled  to  go  on, 
and  have  an  account  taken  in  this  Court,  yet  I  see  nothing 
to  justify  me  in  interfering  in  the  meantime  with  the  defend- 
ant's action  at  law.  The  motion  to  dissolve  the  injuncfon 
must  be  granted. 

Motion  grante  i. 

279 


CASES  IN  CHANCEPvY. 


*SMITH  against  WEST. 


After  a  cause  had  been  regularly  set  down  for  a  hearing,  on  the  Ml  and 
answer,  the  plaintiff  was  allowed  to  file  a  replication,  on  payment 
of  costs. 


June  9. 


[*364 


THIS  cause  was  set  down  for  hearing,  in  September  last, 
by  the  plaintiff,  on  bill  and  answer :  but  he  did  not  bring  it 
on.  The  defendant,  accordingly,  in  May  last,  entered  an 
order,  and  gave  notice  that  he  be  at  liberty  to  bring  the  cause 
to  a  hearing,  at  this  time :  upon  receiving  the  notice,  the 
plaintiff  filed  a  replication,  and  put  the  cause  at  issue. 

Griffin,  for  the  defendant,  now  moved  to  set  aside  the 
replication,  with  costs ;  and  that  the  defendant  have  leave  to 
bring  the  cause  to  a  hearing,  on  the  bill  and  answer. 

Caines,  contra.  He  read  an  affidavit  of  the  plaintiff's  so- 
licitor, stating  facts,  which  showed  that  it  was  necessary,  for 
the  plaintiff's  rights,  to  take  proof  in  the  cause,' and  explaining 
why  it  was  before  omitted. 

THE  CHANCELLOR.  Under  the  circumstances  of  this  case, 
the  motion  cannot  be  granted.  There  are,  no  doubt,  fre- 
quent instances  in  which  the  Court  has  allowed  the  plaintiff 
to  reply,  after  the  cause  had  been  set  down  for  hearing,  on 
bill  and  answer.  It  is  a  matter  resting  in  discretion.  In 
some*  cases,  the  plaintiff  has  been  permitted  to  reply,  after 
having  gone  to  a  hearing,  on  payment  of  costs.  (Wyatfs 
P.  R.  375.  Donegall  v.  Warr,  1  Eq.  Cos.  Abr.  43.  pi.  4.) 
I  shall,  therefore,  deny  the  motion,  on  condition  that  the 
plaintiff,  within  four  days,  pay  the  defendant's  costs  arising 
from  the  cause  being  set  down  for  *hearing  in  September  last, 
and  from  the  proceedings  on  the  part  of  the  defendant  in 
May  last.  No  costs  of  the  present  motion  to  be  allowed  on 
either  side. 

Order  accordingly. 
280 


CASES  IN  CHANCERY. 


CONSEQUA  against  FAN?  NG  and  others. 

[Adhered  to,  4  Johns.  Ch.  448.] 

Where  a  decretal  order  of  reference  to  a  master,  to  take  an  account, 
was  made  in  September,  1817,  and  in  January,  1818,  the  master,  after 
hearing  both  parties,  made  his  report,  and  in  June  following,  the  de- 
fendant petitioned  for  a  rehearing  on  grounds  affecting  the  merits  of 
the  decretal  order ;  the  Court,  though  the  part}'  was  not  entitled  to  a 
rehearing,  as  of  course,  on  account  of  the  delay  in  making  the  appli- 
cation, granted  the  petition,  on  the  defendant's  paying  all  the  costs  of 
reference,  under  the  order,  and  depositing^/?i/  dollars  with  the  reg- 
ister, towards  the  expenses  of  the  rehearing,  in  case  the  decree  should 
not  be  materially  altered. 

On  a  petition  for  a  rehearing,  the  party  applying  must  deposit  jifty  dollars 
with  the  register,  towards  the  costs  of  the  rehearing,  in  case  the  de- 
cree should  not  be  materially  varied. 

PETITION  by  the  defendants  for  a  rehearing,  conceiving 
themselves  aggrieved  by  the  decretal  order  of  the  30th  of 
September,  last ;  1 .  Because  a  ge'  eral  account  was  not  decreed, 
but  only  specifically ;  (setting  forth  the  specific  directions 
contained  in  the  decretal  order,  which  was  very  particular  as 
to  the  mode  of  taking  the  account ;)  2.  Because  the  decree 
limits  the  charges,  to  be  made  by  the  defendant,  to  remittances 
and  payments,  applicable  to  the  matters  charged,  whereby 
matters  of  account,  to  a  large  amount,  viz.  86,000  dollars, 
were  excluded  ;  3.  Because  the  defendants  are  charged  with 
a  note  given  by  Obcd  Chase  to  the  plaintiffs,  for  35,700  dol- 
lars and  50  cents,  OR  with  goods  sold  by  the  plaintiffs  to  them 
for  that  amount,  whereas,  by  the  pleadings  and  proofs,  thev 
are  not  fully  chargeable  with  that  sum,  in  either  shape,  but 
ought  only  to  be  charged  as  for  goods  consigned;  and  in 
*that  way  the  defendants  are  willing  to  account ;  4.  Because 
the  defendants  are  charged  with  twelve  per  cent.,  whereas,  in 
case  of  consignments,  they  ought  not  to  be  charged  with 
greater  interest  than  seven  per  cent. ;  5.  Because  the  defend- 
ants are  charged  with  so  much  of  the  goods  shipped  by  the 
plaintiffs  on  the  25th  of  November,  1810,  in  the  ship  Chinese, 
&c.  &,c. ;  6.  Because  the  defendants  are  directed  to  account 
for  the  proceeds  of  64,828  dollars  and  65  cents,  deducting 
only  43,025  dollars  and  87  cents,  whereas,  &c. 

The  defendants,  in  praying  for  a  rehearing,  submitted  to 
pay  what  costs  the  Court  should  direct,  in  case  their  complaint 
proved  to  be  groundless. 

T.  A.  Emmet  and  Brackett,  in  support  of  the  petition. 


FANNING 


June  12. 


[*365j 


Riggs,  for  the  plaintiff,  offered  to  read  an  affidavit  of  what 
VOL    III.  36  281 


365  CASES  IN  CHANCERY. 

1818.  to°k  place  before  the  master,  but  it  was  objected  to  by  the 
defendant's  counsel.  The  Court,  however,  permitted  it  to 
be  read. 

. 

FANNING. 

The  master's  report,  dated  January  31st,  1818,  stated, 
that  the  counsel  for  the  parties  attended  before  him ;  that  he 
had,  in  their  presence,  taken  the  accounts  directed  by  the  de- 
cretal order,  and  had  charged  the  defendants,  &c.,  (specifying 
the  charges,)  and  that  he  had  credited  them  for  all  remittances 
and  payments,  and  with  such  other  allowances  as  appeared 
to  be  just.  That  the  balance  due  from  the  defendants,  for 
the  principal  and  interest  to  the  date  of  the  report,  was  104,457 
dollars  and  91  cents. 

THE  CHANCELLOR.  The  application  for  a  rehearing  in 
this  case  has  been  unreasonably  delayed.  The  defendants 
acquiesced  in  the  decree,  by  submitting  to  the  reference  which 
was  directed  by  it,  and  by  appearing  before  the  master,  and 
[  *  366  ]  making  their  defence,  by  way  of  discharge  and  *payment, 
upon  the  principles  contained  in  the  decretal  order.  After 
the  accounts  have  been  taken  and  stated,  and  the  master's 
report  made,  the  petition  for  a  rehearing  is  now  presented, 
and  it  goes  to  the  grounds  and  substance  of  the  decree,  in 
respect  to  the  mode  of  taking  the  accounts.  The  affidavit 
of  the  plaintiff's  solicitor  has  been  read ;  but  as  far  at  it  relates 
to  the  merits  of  the  case  before  the  master,  I  should  think  it 
not  admissible,  and  that,  if  any  information  of  that  kind  was 
wanting,  it  ought  to  have  appeared  upon  the  report  or  cer- 
tificate of  the  master.  As  far,  however,  as  the  affidavit  re- 
lates to  the  acts  of  the  defendants,  in  respect  to  their  con- 
currence in  taking  the  account,  it  may  be  proper ;  but  even 
here  it  was  unnecessary,  for  the  master's  report  contains  the 
fact  of  the  appearance  of  the  defendants,  by  their  counsel, 
before  him,  and  of  their  defence. 

Considering  the  nature  and  importance  of  this  case,  I  am 
induced  to  grant  the  petition ;  but  then  it  must  be  upon  con- 
dition that  the  plaintiff  be  indemnified  for  the  expense  he 
has  been  put  to,  in  taking  the  account.  The  decree  of  the 
30th  September  was  so  precise  and  particular,  in  prescribing 
the  limits,  and  in  settling  the  mode  of  taking  the  accounts, 
that  the  defendants  are  without  excuse  for  their  delay.  There 
was  a  rule  of  the  English  Court  of  Chancery,  in  1 1  Geo.  I. 
(Beanies' s  Orders,  p.  334.  338.)  requiring  a  petition  for  a  re- 
hearing to  be  presented  within  a  fortnight  after  the  order 
pronounced ;  and  though  the  Court  has,  in  the  exercise  of 
its  liberal  discretion  on  this  subject,  departed  from  the  rule, 
282 


CASES  IN  CHANCERY.  366 

(Newland's  Practice,  p.  187.)  yet  the  existence  of  such  a        1818. 
rule  contains  a  salutary  admonition.  ^^--v— *»-> 

There  is,  also,  a  standing  rule  in  the  English  chancery,     CONSEQUA 
(Rule  of  1700  and  of  1794.     Beames's  Orders,  p.  316. 459.)      FAH£IHO. 
that  the  party  obtaining  a  rehearing  shall  deposit  with  the 
register  10/.  to  be  paid  to  the  adverse  party,  if  the  decree  be 
not  essentially  varied.     This  is  a  useful  check  upon  the  abuse 
of  such  applications  ;  and  I  see  no  reason  *why  a  similar  rule       [  *  367  ] 
of  practice  ought  not  to  prevail  here.     After  a  cause  has  been 
regularly  brought  to  a  hearing,  and  argued  by  counsel,  and 
solemnly  considered,  a  rehearing  ought  not  to  be  a  matter  of 
course,  and  without  costs,  as  it  would  tend  to  harass  the  party, 
and  protract  litigation. 

I  shall,  accordingly,  grant  the  motion  for  a  rehearing,  on 
condition  that  the  defendants  previously  pay  the  costs  of  the 
reference,  under  the  order  of  the  30th  of  September  last,  and 
also  deposit  with  the  register  50  dollars,  towards  the  expense 
of  the  rehearing,  in  case  the  decree  should  not  be  materially 
altered  ;  and  to  be  paid  over  as  the  Court  shall  finally  direct. 
I  shall  follow  the  practice  of  requiring  a  deposit  in  like  cases, 
hereafter. 

Order  accordingly. 

383 


367  GASES  IN  CHANCERY 

1818. 

MILLS 

DIN™.  MILLS  against  DENNIS  and  others. 

[Applied,  50  Barb.  342;  9  Cow.  359;  3  Sandf.  Cli.  153.    Followed,  1  Edw.  448;  5  Johns. 
Ch.  167;  1  Sandf.  Ch.  118.    s.p.  Clarke  423;  2  Paige  301;  6  Id.  178. 

There  can  be  no  valid  decree  against  an  infant,  by  default,  nor  on  hw 
answer  by  his  guardian  ;  but  the  plaintiff'  must  prove  his  demand  in 
Court,  or  before  a  master,  and  the  infant  will  have  a  day  in  Court, 
after  he  conies  of  age,  to  show  error  in  the  decree. 

But  if,  instead  of  seeking  a  foreclosure  of  the  mortgage  against  the  in 
fant  heir  of  the  mortgagor,  there  is  a  decree  for  the  sale  of  the  mort 
gaged  premises,  the  decree  will  bind  the  infant. 

A  sale  is  the  most  useful  course,  as  being  the  most  beneficial  to  both 
parties. 

But  before  a  decree  for  the  sale,  there  must  be  a  special  report  of  a 
master,  of  the  proof  of  the  debt  before  him,  of  the  amount  due,  and 
of  what  part,  if  less  than  the  whole,  of  the  mortgaged  premises,  a  sale 
will  be  sufficient  to  raise  the  amount  of  debt,  and,  at  the  same  time, 
be  most  beneficial  to  the  infant. 

June  15  BILL  to  foreclose  a  mortgage  executed  by  Isaac  Dennis, 

deceased.  The  defendants  (except  one)  are  the  heirs  at  law 
of  the  mortgagor,  and  two  of  them  represented  as  infants. 
The  bill  was  duly  taken  pro  confesso,  against  all  the  defend- 
ants, except  the  two  infants,  who  appeared  and  answered  by 
[*368]  their  guardian,  the  clerk  of  the  Court,  *who  was  appointed 
their  guardian,  for  this  purpose,  by  an  order  of  the  Court. 
A  reference  was  made  to  a  master  to  compute,  and  report 
the  amount  due  on  the  bond  and  mortgage  mentioned  in  the 
bill.  The  cause  was  then  regularly  set  down  for  hearing 
upon  the  report,  and  due  notice  thereof,  as  respected  the 
infants,  was  served  upon  their  guardian. 

G.  W.  Strong,  for  the  plaintiff,  moved  for  confirmation 
of  the  report,  and  a  decree  for  the  sale  of  the  mortgaged 
premises. 

THE  CHANCELLOR.  A  decree  cannot  safely  be  obtained 
against  an  infant,  upon  the  mere  fact  of  taking  the  bill  pro 
confesso,  or  upon  an  answer  in  form  by  the  guardian,  ad  litem. 
The  answer  in  such  cases  generally  is,  that  the  infant  knows 
nothing  of  the  matter,  and,  therefore,  neither  admits  nor  de- 
nies the  charges,  but  leaves  the  plaintiff  to  prove  them,  as  he 
shall  be  advised,  and  throws  himself  on  the  protection  of  the 
Court.  A  decree  upon  such  an  answer  would  not  bind  the 
infant,  and  he  could  open  it,  or  set  it  aside,  when  he  comes 
of  age.  No  laches  can  be  imputed  to  an  infant,  and  no  valid 
decree  can  be  awarded  against  him,  merely  by  default.  The 
plaintiff,  in  every  such  case,  ought  to  prove  his  demand, 
284 


CASES  IN  CHANCERY.  369 

either  in  Court,  or  before  a  master  ;  and  the  infant  is  usually 
'jntitled  to  a  day  to  show  cause,  when  he  comes  of  age. 

It  was  the  ancient,  and  has  been  the  settled  practice  of  MILLS 
the  Court,  that  no  decree  should  be  made  against  an  infant,  D  v 
without  giving  him  a  day  (which  was  usually  six  months) 
after  he  comes  of  age,  to  show  cause  against  it ;  (2  Fern. 
232.  342 ;  2  P.  Wms.  403.)  and  he  is  to  be  served  with 
process  of  subpoena,  for  that  purpose,  on  his 'coming  of  age. 
(Bingham  on  Infancy,  p.  115.)  But  though,  in  the  case  of  a 
foreclosure  of  a  mortgage,  the  infant  has  his  six  months  to 
show  cause,  yet  he  cannot,  then,  be  permitted  *to  unravel  the  [  *  360  ] 
accounts,  nor  will  he  be  entitled  to  redeem  the  mortgage,  by 
paying  what  is  reported  due.  He  is  only  entitled  to  show 
error  in  the  decree ;  and  this  was  declared  to  be  the  settled 
rule  by  Lord  Talbot,  in  Mattock  v.  Galton,  (3  P.  Wms.  352.) 
and  was  understood  to  be  the  rule  in  the  case  of  the  Bishop 
of  Winchester  v.  Beaver,  (3  Vesey,  317.) 

If,  however,  instead  of  foreclosing  the  mortgage  against 
the  infant  heir  of  the  mortgagor,  and  thereby  giving  him  a 
day  after  he  comes  of  age,  it  be  decreed,  that  the  lands  be 
sold  to  pay  the  mortgage  debt,  then  it  seems  to  be  understood 
that  the  sale  will  bind  the  infant.  (Booth  v.  Rich,  1  Fern. 
295.)  So  if  lands  devised  to  be  sold,  for  payment  of  debts, 
be  decreed  to  be  sold,  the  infant  has  no  day,  after  he  comes 
of  age,  unless  he  be  decreed  to  join  in  the  sale.  (2  Fern. 
429.)  The  English  practice,  until  lately,  has  been  to  fore- 
close, instead  of  selling  the  mortgaged  premises.  Thus,  in 
Goodier  v.  Ashton,  (18  Vesey,  83.)  there  was  the  usual  decree 
of  foreclosure  against  an  infant,  with  a  day  to  show  cause, 
though  it  was  then  suggested  to  the  Court,  that  a  decree  for 
a  sale  would  be  more  advantageous  to  the  infant,  as  the 
estate  might  be  mortgaged  for  less  than  its  value ;  and  it  was 
said  to  be  the  rule  in  Ireland  to  direct  a  sale  in  all  cases, 
instead  of  a  foreclosure.  But  the  master  of  the  rolls  did  not 
incline  to  make  such  a  precedent  against  the  uniform  prac- 
tice. This  course  was,  however,  shortly  afterwards,  adopted 
by  Lord  Eldon,  in  Mondey  v.  Mondey,  (1  Vesey  and  Bea. 
223.)  who  said,  that,  if  there  was  no  precedent,  (as  he  be- 
lieved there  was  not,)  he  would  then  make  one ;  and  he 
directed  an  inquiry,  whether  it  would  be  for  the  infant's  ben- 
efit, that  the  estate  should  be  sold. 

The  practice,  with  us,  has  been  to  sell,  and  not  to  foreclose, 
as  well  where  infants,  as  where  adults  are  concerned.  I  think 
this  course  must  generally  be  most  beneficial  to  the  infant, 
as  well  as  to  the  creditor ;  and  there  can  *be  no  doubt  of  the  [  *  370  ] 
authority  of  the  Court  to  pursue  it.  The  Court  may  change 
the  estate  of  infants  from  real  into  personal,  and  from  per- 

285 


370 


CASES  IN  CHANCERY. 


1818.       sonal  into  real,  whenever  it  deems  such  a  proceeding  most 
^^-sx-**-'  beneficial  to  the  infant.     (Amb.  419.  6  Vesey,  6.  3  Desaus. 
MILLS        S.  Ca/-o.  Rep.  18.  21.)     The  proper  inquiry  in  such  cases 
DENNIS        w^  ^e'  wnetner  a  sale  of  tne  whole,  or  only  of  a  part,  and 
what  part  of  the  premises  will  be  most  beneficial ;  and  this 
has  now  become  the  usual  inquiry,  even  where  infants  are  not 
concerned,  as  appears  from  the  case  of  Brinckerhoffv.  Thal- 
.    himer.  (2  Johns.  Ch.  Rep.  486.)     The  master  must  not  only 
make  a  special  report  on  that  point,  in  every  case  where  in- 
fants are  defendants,  but  the  plaintiff  must,  also,  prove  his 
debt  before  the  master,  in  the  same  manner  as  if  nothing  had 
been  admitted  by  the  answer ;  and  the  master  must  report 
such  proof,  and  also  the  computed  amount  of  the  principal 
and  interest  due,  and  to  what  extent,  and  of  what  part  of  the 
premises,  (if  any  part  short  of  the  whole,)  a  sale  would  be 
sufficient  to  raise  the  debt,  and  at  the  same  time  be  most 
beneficial  to  the  infant. 

Every  sale  so  decreed  will  be  absolute,  without  any  day  tc 
show  cause. 

Decree  The  following  order  was  entered  :     "  The  plaintiff's  bill 

of  complaint  in  this  cause  having  been  taken  pro  confesso, 
against  the  defendants,  &c.,  and  this  cause  having  this  day 
been  brought  on  to  be  heard,  on  the  said  bill  so  taken  pro 
confesso,  against  the  said  defendants,  and  upon  bill  and  an- 
swer, as  to  the  above-named  defendants,  Thomas  Doty,jun., 
and  Elbert  Doty,  who  are  infants ;  whereupon,  after  reading 
a  notice  of  hearing  of  this  cause,  and  admission  of  the  due 
service  thereof,  by  the  guardian  ad  litem  to  the  said  defend- 
ants, Thomas  Doty, jun., and  Elbert  Doty;  and  after  reading 
the  said  bill  and  answer,  and  an  affidavit  of  the  solicitor  for 
the  plaintiff,  proving  the  regularity  of  the  proceedings  in  this 
cause,  in  taking  the  said  bill  pro  confesso,  against  the  above- 
*  371  ]  named  defendants,  *as  aforesaid,  (which  affidavit  is  filed,)  and 
after  hearing  counsel  for  the  plaintiff,  no  counsel  appearing 
for  the  said  defendants,  Thomas  Doty,  jun.,  and  Elbert  Doty, 
the  said  infants,  to  oppose  the  same ;  it  is  ordered,  adjudged, 
and  decreed,  that  it  be  referred  to  one  of  the  masters  of  this 
Court  to  take  proof  of  the  material  facts  stated  in  the  plain- 
tiff's bill  of  complaint,  and  particularly  whether  the  bond 
and  mortgage,  in  the  plaintiff's  bill  mentioned,  were  duly 
executed,  as  therein  set  forth;  and  if  the  said  bond  and 
mortgage  were  duly  executed,  that  the  said  master  compute 
and  ascertain  the  amount  due  to  the  plaintiff  for  principal 
and  interest  thereon :  And  it  is  further  ordered,  that  the 
said  master,  under  the  circumstances  of  the  case,  in  reference 
to  the  amount  due  to  the  plaintiff  for  principal  and  interest 
on  the  said  bond  and  mortgage,  and  the  situation,  nature 
286 


CASES  LN  CHANCERY.  371 

and  value  of  the  mortgaged  premises,  ascertain  whether  a        1818. 
sale  of  the  whole,  or  a  part  only,  and  what  part,  of  the  said   <_^~x"-*»^ 
mortgaged  premises,  would  be  for  the  benefit  of  the  said      ROBERTS 
infant  defendants  ;  and  that  the  said  master  report,  on  all  the     ANDERSOK 
matters  aforesaid,  to  this  Court,  with  all  convenient  speed. 
And  all  further  directions  are  reserved,  until  the  coming  in 
of  the  said  report." 


ROBERTS  AND  BOYD  against  B.  AND  J.  ANDERSON. 

[Reversed,  18  Johns.  515.] 

A  person  who  has  fraudulently  acquired  title  to  land,  and  fraudulently 
conveyed  it,  though  by  a  mere  quit-claim  deed  without  covenants,  is 
not  a  competent  witness  for  his  grantee,  in  a  suit  brought  against  him 
by  a  person  claiming  it  as  a  bona  fide  purchaser. 

A  deposition  taken  in  an  ejectment  suit  at  law,  brought  by  the  defend- 
ants against  a  third  person  as  tenant,  to  recover  the  land,  the  subject 
of  the  suit  here  is  not  admissible  in  evidence  against  the  plaintiffs ; 
it  being  res  inter  alias  acta. 

Under  the  third  section  of  the  act  to  prevent  frauds,  (10  sess.  c.  44.  27 
Eliz.  ch.  4.)  which  was  intended  to  protect  bona  fide  purchasers,  a 
purchaser,  for  valuable  consideration,  without  notice,  from  a  fraudu- 
lent or  voluntary  grantee,  *will  be  preferred  to  a  subsequent  purchaser,  F  *  372 
for  a  valuable  consideration,  without  notice.  The  first  purchaser  has 
the  preference,  whether  he  takes  his  conveyance  from  the  grantor  or 
grantee. 

Under  the  first  section  of  the  statute,  (sess.  10.  c.  44.  13  Eliz.  c.  5.) 
which  was  made  to  protect  creditors,  a  fraudulent  conveyance  by  a 
debtor  is  utterly  void,  as  to  creditors,  unless  made  for  a  valuable  con- 
sideration to  a  bona  fide  purchaser,  without  notice  of  the  fraudulert 
intent.  But  a  bona  fide  purchaser  from  a  fraudulent  grantee  acquires 
no  title,  by  the  conveyance,  against  the  creditors  of  the  fraudulent 
grantor. 

THE  plaintiff,  Roberts,  being  a  creditor  of  William  Griffith,  J««  IS 
who  had  absconded,  obtained  from  Aaron  Lyon,  on  the  22d 
of  March,  1810,  an  assignment  of  a  bond,  given  by  G.  to.L., 
and  a  mortgage  given  to  secure  the  bond,  on  part  of  a  lot 
of  ground  in  JVewburgh,  duly  registered  in  May,  1806.  The 
plaintiff  R.,  who  paid  L.  214  dollars  and  25  cents,  for  the 
bond  and  mortgage,  took  possession  of  the  mortgaged  prem- 
ises, and  the  house  thereon,  and  the  residue  of  the  lot ;  and, 
on  the  27th  of  August,  1810,  let  the  same,  by  a  written  lease., 
to  Hector  M  'Leod,  who  took  possession  thereof,  as  his  tenant. 
Benjamin  Taylor,  who  had  obtained  a  judgmen*  against  G.t 
on  the  14th  of  May,  1808,  for  128  dollars  and  10  cents, 

287 


372  CASES  IN  CHANCERY. 

1818.  caused  the  premises  to  be  sold  by  virtue  of  an  execution, 
v^^-s^-^.^  issued  on  that  judgment,  and  the  plaintiff  *S*.  B.  became  the 
ROBERTS  purchaser  thereof,  at  such  sale,  for  thirty  dollars,  and  received 
ANDERSON.  a  deed  accordingly.  The  plaintiff  £.  B.  made  the  purchase 
as  trustee  for  the  plaintiff  R.  The  bill  stated  that  Griffith, 
being  indebted  to  sundry  creditors,  and  there  being  suits  then 
pending  against  him,  in  order  to  defraud  his  creditors,  did, 
on  the  20th  of  January,  1808,  convey  the  said  mortgaged 
premises  to  Sarah  Johnson,  for  the  nominal  consideration  of 
2,000  dollars,  and  by  another  deed,  he  conveyed  the  other 
part  of  the  lot  to  her,  for  the  pretended  consideration  of 
1,500  dollars.  That  the  said  deeds  were  collusive  and  fraud- 
ulent, and  the  said  &  J.,  having  paid  nothing,  was  a  trustee 
for  W.  G.,  and  the  lands  were  afterwards  reconveyed  to  him. 
[  *  373  ]  before  Isaac  Clason  obtained  a  judgment  against  the  *said 
tS".  J.  That  G.  continued  to  possess  and  enjoy  the  premises, 
as  his  own,  after  the  conveyance  to  £  J.  That,  in  181 1,  the 
defendants  pretended  to  claim  the  land  under  a  deed  from 
the  sheriff,  dated  the  1st  of  January,  1810,  by  virtue  of  a 
judgment  at  law  in  favor  of  Isaac  Clason,  against  S.  J.,  brought 
an  action  of  ejectment  against  M'Leod,  and  obtained  a  ver- 
dict, on  producing  the  sheriff's  deed,  and  proving,  that,  on 
the  1st  of  May,  1810,  M'Leod  took  a  lease  from  the  defend 
ants,  which  was  held  sufficient  to  exclude  proof  of  his  being 
the  tenant  of  the  plaintiff.  That  the  lease  taken  by  M,, 
under  the  defendant,  being  after  he  became  tenant  to  the 
plaintiff,  was  void,  and  the  attornment  fraudulent ;  he  having 
actually  entered  into  possession  under  the  plaintiff. 

The  bill  prayed,  that  the  conveyances  from  W.  G.  to  S.  J. 
might  be  declared  fraudulent  and  void,  and  that  the  sheriff's 
deed  to  the  defendants,  and  all  other  deeds  from  S.  J.,  or  any 
grantee  of  her,  to  the  defendants,  of  the  premises,  or  any 
part  thereof,  might  be  declared  fraudulent  and  void,  and  be 
delivered  up,  to  be  cancelled ;  and  that  all  proper  parties 
might  release  to  the  plaintiff  R. ;  and  that  an  injunction  issue, 
und  for  general  relief. 

The  defendants,  in  their  answer,  denied  any  knowledge 
of  the  claim  of  the  plaintiff.  They  admitted  the  mortgage 
from  G.  to  Lyon,  but  averred,  that  M'Lcod  was  their  lawr- 
ful  tenant,  on  the  1st  of  May,  1810.  They  admitted  Taylor's 
judgment  and  the  sheriff's  sale  to  the  plaintiff  B.  They 
averred  that  there  was  no  judgment  against  W.  G.  when  he 
conveyed  the  premises  to  S.  J.  They  denied  all  knowledge 
and  belief  of  any  fraud  in  those  deeds,  but  believed  that 
they  were  executed  for  good  and  valuable  considerations, 
paid  by,  or  the  amount  justly  due  to,  £  J.  They  denied 
any  reconveyance  by  her  to  W.  G.,  and  stated  that  Isaac 
288 


CASES  IN  CHANCERY. 


*374 


1813. 

^~-v— <^ 
ROBERTS 

v. 
ANDERSON 


Clason,  on  the  15th  of  May,  1809,  obtained  a  judgment 
against  S.  J.  for  346  dollars  and  88  cents ;  and  that,  on  the 
13th  of  December,  1809,  *the  premises  were  sold  by  virtue 
of  an  execution  on  that  judgment,  and  the  defendant,  B. 
.  Anderson,  became  the  purchaser,  for  one  dollar  and  fifty  cents, 
subject  to  all  prior  encumbrances,  and  the  other  defendant 
became  a  joint  owner.  That  S.  J.  had  executed  a  mortgage 
to  Daniel  Stansbury,  for  496  dollars  and  88  cents.  That 
William  King  had  some  equitable  claim  on  the  property ;  and 
the  defendants  agreed  with  S.  J.  to  give  her  167  dollars  for 
her  quit-claim,  and  also  take  up  the  mortgage  to  Stansbury, 
and  pay  W.  K.  300  dollars  for  his  claim ;  that  $.  /.,  accord- 
ingly, executed  a  quit-claim  deed,  dated  21st  of  March,  1810, 
to  the  defendants,  who  paid  her  the  167  dollars ;  and,  on 
paying  439  dollars  and  39  cents,  took  an  assignment  of  Stans- 
bury's  mortgage ;  and  on  the  23d  of  March,  1810,  on  paying 
300  dollars,  obtained  a  release  from  W.  K.  and  his  wife.  The 
defendants  alleged  that  they  had  not  heard  of  the  claim  of 
the  plaintiffs,  until  after  they  had  paid  the  above-mentioned 
sums,  and  denied  all  notice  of  any  fraud,  &c.  That  the 
defendants  have  tendered  250  dollars,  the  amount  of  the 
mortgage,  to  the  plaintiff  R.,  who  has  refused  to  receive  pay- 
ment. That  Alexander Dennison,  a  tenant  of  S,  J.,  and  Hector 
M'Leod,  on  the  1st  of  May,  1810,  took  a  lease  of  the  prem- 
ises for  one  year  from  the  defendants,  and  became  their  tenant. 
The  defendants  claimed  to  hold  as  bona  Jide  purchasers, 
without  notice,  &c. 

The  cause  came  on  to  be  heard  this  day.  Among  the 
proofs  offered  to  be  read,  on  the  part  of  the  defendants,  were 
two  depositions ;  one  of  Sarah  Johnson,  deceased,  taken 
under  the  act  passed  the  4th  of  April,  1807,  to  perpetuate 
testimony,  which  was  objected  to,  as  inadmissible,  on  the 
ground  of  her  being  interested  to  support  the  defendants' 
title:  the  other,  the  deposition  of  Thomas  Allen,  taken  be- 
fore the  clerk  of  the  Supreme  Court,  in  the  absence  of  the 
recorder  of  New-York,  on  the  29th  of  September,  1812,  on 
the  part  of  the  plaintiff  in  an  action  *of  ejectment  depending 
in  the  Supreme  Court,  between  James  Jackson,  ex  dem.  John 
Anderson  and  Benjamin  S.  Anderson,  against  Hector  M'Leod, 
(vide  12  Johns.  Rep.  182.)  which  was  objected  to,  because 
it  was  not  taken  in  a  cause  in  which  the  plaintiffs  in  this  suit 
were  parties. 

THE  CHANCELLOR.  The  deposition  of  Sarah  Johnson,  ^ 'fraudulent 
oefore  a  master,  under  the  act  of  the  4th  of  April,  1807,  to  lyai quired  title 
perpetuate  testimony,  is  inadmissible,  because  she  was  inter-  fraudu|edn't]yand 

conveyed        it, 

though  by  a  quit -claim  deed,  without  covenants,  is  not  a  compettnt  witness  for  his  grantee,  in  a  suit 
brought  against  him  by  a  person  claiming  it  as  a  bona  fide  purchaser. 

VOL.  III.  37  289 


June  19. 


375  ] 


375  CASES  IN  CHANCERY. 

1818.       ested  in  supporting  the  title  she  had  conveyed  to  the  defend- 

•s^-v^^x  ants-     It  ig>  indeed,  stated  by  the  master,  that  her  inteiest 

ROBERTS      had  been  released  ;  but  no  such  release  is  produced,  to  enable 

AHDERSON  me  to  JU(*ge  °^  ^'  nor  ^s  any  account  given  of  its  loss.  It  is 
also  true  that  the  defendants  state,  in  their  answer,  that  she 
had  executed  to  them  a  quit-claim  deed,  for  which  they  paid 
her  167  dollars ;  but  they  say  that  they  had  not  then  heard 
of  the  claim  of  the  plaintiffs,  and  deny  all  notice  of  fraud. 
If,  however,  k?aroA  Johnson  possessed  herself  of  a  title  to  the 
land  in  question  from  Griffith,  by  a  fraudulent  agreement  be- 
tween them,  to  cover  the  property  from  creditors,  as  is  charged, 
then  she  had  not,  and  knew  she  had  not,  any  valid  title, 
when  she  conveyed  to  the  defendants,  for  a  valuable  consid- 
eration. She  took  the  land  in  fraud,  and  fraudulently  re- 
leased to  the  defendants ;  and  if  the  charges  in  the  bill  were 
established,  the  defendants  would  be  entitled  to  an  action  on 
the  case,  in  the  nature  of  an  action  of  deceit,  against  Sarah 
Johnson,  notwithstanding  she  conveyed  to  them  without  cov 
enants.  This  is  a  clear  and  settled  rule  of  law  and  equity. 
(Com.  Dig.  tit.  Action  on  the  Case  fora  Deceit,  A.  8.  1  Salk. 
211.  Risney  v.  Sel by,  Butler's  note  to  Co.  Litt.  No.  332. 
Edwards  v.  M'Leay,  Cooper's  Eq.  Rep.  308.)  (a)  She  was, 
[  *  376  ]  therefore,  directly  interested  when  *she  made  the  deposition, 
in  repelling  the  charges  in  the  bill,  and,  consequently,  her 
deposition  cannot  be  received. 

A  deposition  The  deposition  of  Thomas  Allen,  taken  before  the  clerk 
jectment  suit  at  of  the  Supreme  Court,  in  the  absence  of  the  recorder  of 
law,  brought  by  New-York,  on  the  29th  of  September,  1812,  on  the  part  of 
here  againsTa  the  plaintiff,  in  the  cause  then  depending  in  the  Supreme 
third  person,  as  Court  between  "  James  Jackson,  ex  dem.  John  Anderson  and 
cw^'the'iand"  Benjamin  S.  Anderson,  v.  Hector  M'Leod,"  is  inadmissible, 
the  subject  of  because  it  was  taken  in  a  cause  in  which  the  present  plain- 

the  suit  here  is    ,•  n-  T.  •    .          7.  j    ,i 

not   admissible  tiffs  were  not  a  party.     It  was  res  inter  ados  acta,  and  the 
evidence  present  plaintiffs  had  no  opportunity  or  power  to  cross  ex- 

pfaTntiff,  being  amine.  It  cannot  be  said,  that  the  present  plaintiffs  were 
res  inter  olios  parties  to  that  ejectment  suit,  by  their  tenant,  Hector  M  'Leod  ; 
for  the  bill  charges  that  M  'Leod  had  taken  a  lease  under  the 
present  defendants,  and  that  the  recovery  at  law  was  had 
upon  the  ground  that  M'Leod  was  the  tenant  of  the  present 
defendants;  and  the  answer  admits  that  M'Leod  was  the 
tenant  of  the  present  defendants.  It  would  be  a  very  extra- 
ordinary act  of  inconsistency  and  injustice,  for  the  defend- 
ants to  assert,  and  prevail  at  law  on  the  assertion,  that 
M  'Leod  was  their  tenant,  and  not  the  tenant  of  the  plaintiffs ; 
and  then  for  them  to  offer  an  affidavit  taken  in  the  cause  at 
law,  and  have  the  same  received  in  this  suit  against  the  piam- 

(a)  Vide  Wardettv.  Fosdick,  13  Johns.  Rep.  325.     Mondlv.  Golden,  76.395. 
2  Cainis,  193.     1  Fonbl.  366.  note. 

290 


CASES  IN  CHANCERY. 

tiffs,  on  the  ground  that  it  was  taken  in  a  cause  in  which  the 
plaintiffs  were  essentially  the  party. 

These  depositions  being  rejected,  the  cause  was  argued      ROBERTS 
upon  the  residue  of  the  testimony  produced.  .     v- 

S.  Jones,  jun.,  for  the  plaintiffs. 
Burr,  for  the  defendants. 

THE  CHANCELLOR.  There  cannot  be  a  doubt  as  to  the 
operation  and  effect  of  the  proof  upon  the  question  *of  fraud.  [  *  377  J 
The  two  deeds  from  Griffith  to  Sarah  Johnson  were  palpa- 
bly and  grossly  fraudulent.  Even  if  the  deposition  of  Sarah 
Johnson  had  been  admissible,  it  would  not  have  been  entitled 
to  credit,  in  opposition  to  the  mass  of  testimony  clearly 
establishing  the  fraud  in  the  conveyances  to  her,  and  her 
knowledge  and  admission  of  the  fact. 

The  only  possible  question  in  the  case,  as  it  strikes  me,  is, 
whether  Sarah  Johnson,  being  a  fraudulent  grantee,  can  be 
the  source  of  legal  title  in  the  defendants,  assuming  them  to 
be  bonajide  purchasers,  for  a  valuable  consideration,  without 
notice  of  the  fraud. 

It  is  a  rule  which  we  find  in  the  books,  (Prodgers  v.  Lang-  Under 27  Eliz. 
ham,  1  Sid.  133.  Andrew  Newport's  case,  Skinner,  423.  se^forYvahla" 
Smartle  v.  Williams,  3  Lev.  387.  Comb.  247.  l)oe  v.  bie  considera- 
Martyr,  4  B.  fy  Puller,  332.)  that  a  purchaser  for  a  valuable  J|^e>  2JJ"J 
consideration,  without  notice,  from  a  voluntary  or  fraudulent  voluntary  or 
grantee,  shall  be  preferred  to  a  subsequent  purchaser,  for  a  tee"  wiiTbe^pre- 
valuable  consideration,  without  notice,  from  the  original  ferred  to  a  sub- 
grantor.  But  these  are  cases  arising  under  the  statute  of  27  ser,Ufor  a"vaiu- 
E!iz.,  which  was  intended  to  protect  bona  fide  purchasers  able  considera- 

<  .,1  •  i         ,-  1  tion,        without 

against  purchasers  without  consideration,  or  voluntary  gran-  notice  from  tlie 
tees :  this  intention  is  equally  fulfilled  whether  the  conveyance  original  grant- 
for  a  valuable  consideration  comes  from  the  voluntary  grantor 
or  grantee.     If  there  be  no  creditors,  the  title  of  the  volun- 
tary grantee  is  good  until  there  comes  a  bonajide  purchaser 
from  the  grantor,  for  a  valuable  consideration.     Until  then, 
no  person's  rights  are  affected ;  but  when  that  happens,  the 
deed,  as  to  such  purchaser,  is  to  be  set  aside.     If,  however, 
the  voluntary  grantee  shall  have  sold,  in  the  mean  time,  to  a 
bona  fide  purchaser,  he  is  justly  to  be  considered  as  standing 
in  the  grantor's  place ;  and  that  what  is  done  by  him  is  done 
by  the  grantor,  and  such  purchase  will  stand  *good.     Under        [*378  ] 
this  statute,  the  first  purchaser  for  a  valuable  consideration,     Under      th« 
whether  he  takes  the  conveyance  from  the  voluntary  grantor  third  section  of 

•11   i  ^i  e  /•,iii-      ^     c  .LI.       tne    s'atu'e   foi 

or  grantee,  will  have  the  preference  ;  for  the  sole  object  of  the  the  prevention 

of  frauds,  (sess. 

10.  c.  44.  27  Eliz.  c.  4.)  the  first  purchaser,  for  a  valuable  consideration,  whether  he  takes  the  con- 
'eyancc  from  the  grantor  or  grantee,  will  be  preferred. 

291 


378  CASES  IN  CHANCERY 

1818.       statute  was  to  protect  such  purchasers  against  voluntary  con 

-^*— ^~*+~s  veyances,  which,  as  to  them,  are  fraudulent. 

ROBERTS          The  case  before  me  falls  undei   the  13  Eliz.,  which  was 

ANDERSON      ma(^e  to  protect  creditors  from  fraudulent  conveyances  ;  and 

Under     the  nere  a  different  rule  of  construction  prevails.     The  original 

frst  section  of  deed    from  the    debtor  to  a  fraudulent   grantee  is  "  utterly 

fraudsta'Ut(sess.  vo*d "  as  *o  creditors,  and  as  against  them,  the  grantee  can 

10.  ch'.  44.  13  make  no  conveyance,  for  he  has  no  title,  as  against  them. 

fraudulent  con*  The  statute,  in  its  enacting  clause,  operates  on  the  deed  from 

veyance,  by  a  the  fraudulent  debtor,  and  the  proviso  in  the  act  applies  to 

terly 'vokl r  "as  ^a^-  original  conveyance  from  the  debtor,  and  saves  it,  when 

to  creditors,      made  to  a  bona  fide  purchaser  fora  valuable  consideration. 

^•"purchaser"  Such  a  conveyance  is   supported  by  the    proviso,  however 

for  a  valuable  fraudulent   the  intention  of  the  grantor  might  be,  and  the 

anTwkhoutn'o-  contrary  impression,  which  I  had  once  received  on  this  point 

tice  of  the  fraud-  from  some  of  the  English  cases,  without,  at  the  time,  adverting 

ent>        to  this    proviso,  and  which  led  me  to  the  dictum  in  Hildritti 

v.  Sands,  (2  Johns.  Ch.  Rep.}  was  properly  corrected  by  Mr. 

J.  Spencer,  when  that  cause  was  afterwards  before  the  Court 

of  Errors.     (14  Johns.  Rep.  498.) 

But  a /wiaj&fe       But  though  the  debtor  himself  may  fraudulently,  on  his 

aUfrauduient°m  Part'  convey  to  a  bona  fide  purchaser,  for  a  valuable  consid- 

gramee,      ac-  eration,  yet  his  fraudulent  grantee  cannot ;  for  it  is  under- 

byirthe  comiy!  stood  that  tne  proviso  in  the  13  Eliz.  does  not  extend  to 

ance      against  such  subsequent  conveyance.     The  policy  of  that  act  would 

the  "fraudulent  be  defeated  by  such  extension.     Its  object  was   to  secure 

Cantor.  creditors  from  being  defrauded  by  the  debtor ;  and  the  danger 

was,  not  that  he  would  honestly  sell  for  a  fair  price,  but  that 

he  would  fraudulently  convey,  upon  a  secret  trust  between 

him  and  the  grantee,  at  the  expense  of  the  creditors.     If  the 

debtor  sells,  himself,  in  a  case  where  the  creditor  has  no  lien, 

[  *  379  ]       and  sells  for  a  valuable  Consideration,  he  acquires  means  to 

discharge  his  debts,  and  it  may  be  presumed  he  will  so  apply 

them.     If  his  fraudulent  grantee  be  enabled  to  sell,  the  grantor 

cannot  call  those  proceeds  out  of  his  hands,  and  the  grantee 

can  either  appropriate  them  to  his  own  use,  or  to  the  secret 

trusts  upon    which  the  fraudulent  conveyance    was  made. 

There  is  more  danger  of  abuse,  and  that  the  object  of  the 

statute  would  be  defeated,  in  the  one  case  than  in  the  other. 

The  fraudulent  grantee  has  no  title  as  against  the  creditors. 

The  deed,  as  to  them,  is  "  utterly  void  ;  "  and  the  subsequent 

conveyance  from  him  would,  as  against  the  creditors,  have 

no  foundation.     There  is,  therefore,  no  analogy  between  the 

conveyance  of  the  grantee  under  the  27th,  and  under  the 

13th  of  Eliz. ;  for  in  the  former  case  he  has  a  good  title  until 

a  conveyance  from  him,  or  from  the  grantor  to  a  bona  fid (, 

purchaser,  takes  place ;  whereas,  in  the  latter  case,  his  title, 

as  against  the  creditor,  was  absolutely  void  from  the  begin 

292 


CASES  IN  CHANCERY.  3-  9 

ning.     It  would  seem  to  be  a  very  inadmissible  proposition,        1818. 
that  the  conveyance  of  a  fraudulent  grantee  can  be  held  valid  ^^-^-^ 
against  creditors,  when  the  statute  declares  the  original  con-      ROBERTS 
veyance  utterly  void  as  against  them.  ANDERSO* 

This  subject  was  considered  by  the  Supreme  Court  of 
Errors  of  Connecticut,  in  Preston  v.  Crofat,  (1  Day's  Rep. 
N.  S.  527.  note.)  I  have  availed  myself  freely  of  the  argu- 
ment in  that  case,  in  which  it  was  decided,  by  the  opinion  of 
six  judges  to  two,  upon  their  statute  of  frauds,  which  is  sub- 
stantially the  same  as  the  statutes  of  Elizabeth,  that  a  bona 
fide  purchaser,  without  notice,  and  for  a  valuable  consid- 
eration, from  a  fraudulent  grantee,  had  no  title  against  the 
creditors  of  the  fraudulent  grantor.  This  may  be  considered 
as  a  decision  under  the  13  Eliz. ;  and  it  is  eminently  distin- 
guished for  accuracy  of  research  and  closeness  of  reasoning. 
The  case  was  discussed  at  the  bar  and  upon  the  bench,  in  an 
elaborate  manner,  and  with  *very  great  ability  ;  and  though  [  *  380  1 
I  entirely  subscribe  to  the  opinions  of  the  majority  of  the 
Court,  it  is  not  \vithout  the  highest  respect  for  the  talent  with 
which  the  opposite  opinion  was  supported. 

In  the  revision  of  our  statute  law,  the  statutes  of  the  13th  and 
27th  of  Eliz.  are  connected  together  in  one  act,  and  the  provi- 
soes in  these  statutes  are  consolidated  in  the  6th  section  of  the 
act ;  but  I  have  taken  it  for  granted,  as  being  a  settled  rule,  (and 
one  which  was  established  by  the  Court  of  Errors,)  in  respect 
to  our  revised  laws,  that  the  construction  of  those  different 
provisions  in  connection  with  the  general  proviso,  remains 
the  same  since  as  before  the  revision.  And  if  the  proviso, 
as  applicable  to  the  13  Eliz.,  does  not  reach  the  case  of  a 
sale  by  a  fraudulent  grantee,  (and  all  the  judges  in  the  case 
of  Preston  v.  Crofat  concurred  in  this,)  then  that  decision  is 
a  direct  and  strong  authority  in  this  case,  notwithstanding 
the  statute  of  frauds  in  Connecticut  may  be  destitute  of  such 
a  proviso. 

The  case  before  me  shows  the  necessity  and  wisdom  of 
the  rule,  which  will  not  allow  the  fraudulent  grantee  to  con- 
vey, so  as  to  bind  the  creditors  of  the  grantor ;  for  here  the 
title  set  up  is  under  the  judgment  of  a  creditor  of  the  gran- 
tee, and  ii  it  was  to  prevail,  the  creditors  of  the  grantor  would 
be  effectually  defrauded.  The  conveyance  would  enure  to 
the  exclusion  of  their  debts,  and  to  the  sole  benefit  of  the 
fraudulent  grantee. 

Independent  of  the  general  doctrine,  there  are  special 
reasons  in  this  case  why  I  think  the  present  defendants 
cannot  protect  themselves,  as  bona  fide  purchasers,  under 
a  sale  on  execution  against  Sarah  Johnson,  the  fraudulent 
grantee. 

293 


380 


CASES  -IN  CHANCERY. 


1813.  The  plaintiff  Roberts  was  a  creditor  of  Griffith,  when  ih« 

s^^-v-^^   judgment  was   entered,  and  the  execution   issued  against 

ROBERTS      Johnson;    and   the  execution   authorized  and    directed  the 

ANDERSON,     sheriff  to  sell  lands,  whereof  she  was  seised,  on  such  a  day. 

f*381 1        The  statute  alludes  to  a  legal  seisin,  whereas,  by  *the  statute 

of  frauds,  she  had  no  seisin,  as  against  the  creditors  of  Griffith. 

The  conveyance  to  her  was,  as  to  them,  utterly  void ;  and 

judicial  sales  were  not  intended  to  defeat  the  operation  of 

the  statute  of  frauds.     They  operate  only  upon  the  fair  legal 

title,  and  not  where  there  is  a  want  of  title.     The  statute 

provides  for  the  case  of  an  eviction  of  a  purchaser,  on  exe 

cution,  on  account  of  want  of  title  in  the  defendant,  and 

purchasers  are  presumed  and  understood  to  be  on  their  guard. 

In  this  case  the  defendants  only  gave  a  nominal  consideration 

of  one  dollar  and  fifty  cents.     It  was  truly  a  purchase  upon 

speculation,  and  which  could  not  have  been  made  at  such  a 

price,  at  a  bona  fide  private  sale. 

But  what  appears  to  me  to  be  decisive,  is  the  fact,  that 
Sarah  Johnson  never  was  in  possession,  as  owner,  under  the 
fraudulent  deed.  There  were  no  false  lights  held  out  to  de- 
ceive the  world ;  and  the  case  is  not  within  the  reason  and 
policy  of  any  rule  calculate  d  to  protect  a  bona  fide  purchaser. 
Immediately,  or  very  shortly  after  the  execution  of  the  fraud- 
ulent deeds  of  December,  1807,  Wm.  Griffith  leased  the 
premises  to  Denniston,  for  five  years,  and  he  was  in  possession 
under  that  lease  when  the  defendants  made  their  purchase  at 
the  sheriff's  sale.  They  are  to  be  presumed  to  have  had 
notice  of  this  fact  existing  before  their  eyes  ;  and  it  was  suffi- 
cient to  put  them  upon  inquiry,  as  to  the  pretended  title  of 
Sarah  Johnson.  They  are  not  entitled  to  be  considered  as 
bona  fide  purchasers  for  a  valuable  consideration,  without 
notice.  They  had  notice,  that  here  was  no  possession 
accompanying  the  deeds,  and  they  paid  only  a  nominal 
consideration. 

It  is,  accordingly,  declared,  that  the  two  deeds  to  Sarah 
Johnson  are  fraudulent  and  void  ;  and  that  the  plaintiffs  ought 
to  be  quieted  against  any  claim  on  the  part  of  the  defendants 
under  those  deeds,  by  a  perpetual  injunction. 


294 


Decree  accordingly. 


CASES  IN  CHANCERY. 


*382 


*W.  COOPER  and  his  Wife  against  REMSEN  and  others. 

A  testator,  by  his  will,  dated  September  25th,  1810,  gave  to  his  daughter, 
during  her  separation  from  W.  C.,  her  husband,  one  thousand  dollars 
a  year,  which  he  charged  on  his  real  estate.  W.  C.  and  his  wife  were 
living  separate  when  the  will  was  made,  but  cohabited  together  in 
February,  1815,  when  the  testator  made  a  codicil  to  his  will,  (changing 
only  the  executors,)  and  also,  at  his  death,  but  separated  immediately 
after  his  decease,  and  continued  to  live  separate  until  within  a  short 
time  previous  to  filing  the  bill  by  W.  C.  and  his  wife  against  the  ex- 
ecutors, for  the  legacy.  Held,  that  the  plaintiffs  were  not  entitled 
to  the  legacy  ;  and  the  bill  was  ordered  to  be  dismissed  with  costs. 


1818. 

*^s~*+ 

COOPEK 
V. 

REMSEN. 


THE  bill, which  was  for  a  legacy,  stated,  that  Isaac  C/ason,  June  30. 
by  his  will,  dated  September  25th,  1810,  gave  to  the  plaintiff, 
Mrs.  C.,  his  daughter,  the  furniture  he  had  delivered  to  her ; 
and,  also,  that  he  gave  her,  during  her  separation  from  the 
plaintiff  W.  C.,  her  husband,  one  thousand  dollars  a  year, 
which  he  charged  on  his  real  estate;  and  that,  on  the  14th 
of  February,  1815,  the  testator,  by  a  codicil,  altered  the  names 
of  the  executors,  but  made  no  further  change  in  his  will. 

The  bill  further  stated,  that  at  the  time  of  the  decease  of 
the  testator,  and  at  the  time  of  making  the  codicil,  the  plain- 
tiffs were  living  and  cohabiting  together,  in  the  city  of  New- 
YorJc,  and  that  the  testator  well  knew,  at  the  time  of  making 
his  codicil,  and  at  the  time  of  his  death,  that  the  plaintiffs 
were  living  and  cohabiting  together.  That  immediately  after 
the  death  of  the  testator,  the  plaintiffs  separated  from  each 
other,  and  have  continued  to  live  separate  and  apart  ever 
since,  until  within  two  months  previous  to  filing  of  the  bill. 
The  defendants  having  answered,  the  cause  was  set  down 
for  a  hearing,  on  the  bill  and  answer. 


R.  Sedguick,  for  the  plaintiffs.  He  cited  2  Pernon, 
293.  *3  AtTc.  364.  8  Mass.  Rep.  178.  180.  2  Fernon,  33. 
1  Mod.  300. 

Bristed,  for  the  defendants,  was  stopped  by  the  Court. 

THE  CHANCELLOR.  It  is  impossible  to  maintain  this  suit 
upon  these  pleadings. 

It  is  admitted  that  the  plaintiffs  had  separated,  and  lived 
apart  when  the  will  was  made.  This  appears  from  one  of 
the  answers,  but  not  from  the  bill,  which  only  states,  "  that, 
at  the  time  of  the  date  of  the  codicil,  and  at  the  testator's 

295 


[*383 


383  CASES  IN  CHANCERY. 

1818.  death,  the  plaintiffs  were  living  and  cohabiting  together,  and 
ss.^-v—**^  that  the  testator  well  knew  it,  and  that  immediately  after  the 
COOPER  death  of  the  testator,  the  plaintiffs  separated  from  each  other, 
REMSEN.  an(^  have  continued  to  live  separate  and  apart  ever  since, 
until  within  two  months  previous  to  the  filing  of  the  bill.' 
The  bill  states  no  other  separation,  nor  assigns  any  cause  for 
the  one  which  took  place.  The  inference,  then,  is,  that  the 
plaintiffs  separated  for  the  sole  purpose  of  entitling  themselves 
to  the  legacy.  Such  an  act  cannot  receive  countenance.  It 
was  immoral ;  and  yet  the  plaintiffs  come  here  to  calumniate 
the  memory  of  their  father,  by  charging  him  with  making  a 
provision  for  illegal  and  immoral  purposes,  and  that  it  was 
intended  to  induce  the  plaintiffs  to  violate  their  matrimonial 
engagement.  But  I  think  the  provision  may  receive  a  better 
construction.  If  the  parties  lived  apart  when  he  made  his 
will,  as  one  of  the  answers  admits,  the  provision  may  have 
been  humanely  intended  to  provide  a  suitable  maintenance 
for  a  deserted  child. 

I  can  only  judge  of  this  case  from  the  facts  appearing  in 
the  pleadings ;  and  I  shall  accordingly  dismiss  the  bill  with 
costs  to  the  defendants,  who  are  executors,  with  liberty,  how- 
ever, to  the  plaintiffs,  on  their  suggestion,  to  amend  their  bill, 
within  thirty  days,  on  payment  of  costs. 

Decree  accordingly. 


CASES  IN  CHANCERY. 

1818. 

GOODRICH 

*ll.  GOODRICH,  Administrator,  cum  test,  annexo,  of  P.    FENDLKTON. 
MILLER,  deceased,  against  N.  PENDLETON. 

[Approved,  7  Johns.  Cb.  133.] 

A.  plea  must  rest  the  defence  on  a  single  point,  creating,  of  itself,  a  bar  to 
the  suit. 

A  plea  in  bar  of  the  statute  of  limitations  is  bad,  unless  accompanied  by 
an  answer  supporting  it,  by  a  particular  denial  of  all  the  facts  and 
circumstances  charged  in  the  bill,  and  which  in  equity  may  avoid  the 
statute. 

As  where  the  bill  charged  the  defendant  with  fraud,  and  a  breach  of 
trust ;  and  he  pleaded  the  statute  of  limitations  in  bar,  and  for  answer 
in  support  of  it,  denied,  in  general  terms,  that  he  i-eceived  the  money 
mentioned  in  the  bill,  as  trustee,  the  plea  was  held  bad,  and  overruled, 
with  costs,  and  the  defendant  ordered  to  answer  in  six  weeks,  with 
liberty  to  insist,  in  such  answer,  on  the  benefit  of  the  statute. 


JPHINEAS  MILLER,  of  Georgia,  made  his  will,  the 
llth  of  December,  1797,  appointing  Decius  Wadsworth,  Sam- 
uel Kellock,  and  his  wife,  Catharine  Miller,  his  executors,  and 
aied  the  7th  of  December,  1803.  The  two  executors  first 
named  declined  to  act,  and  the  executrix  administered,  but 
did  not  take  out  any  letters  testamentary  in  this  state.  At 
the  time  of  his  death,  the  testator  was  a  creditor  of  the 
United  States  to  forty  thousand  dollars,  and  upwards,  on  a 
contract  made  for  supplying  the  United  States  with  ship 
timber.  Some  controversy  having  arisen  between  the  execu- 
trix and  the  United,  States,  relative  to  this  debt,  the  defend- 
ant, professing  great  friendship  for  the  executrix,  who  resided 
in  Georgia,  wrote  her  a  letter,  dated  December  4,  1806,  in 
which  he  takes  notice  of  that  debt,  and  expressed  a  belief, 
that  if  he  were  duly  authorized,  he  could  obtain  the  money 
from  the  United  States,  and  he,  at  the  same  time,  enclosed  a 
power  of  attorney  for  her  to  execute.  The  executrix  received 
the  letter,  executed  the  power  of  attorney,  and  returned  it 
to  the  defendant.  The  power  of  attorney  was  dated  Jan- 
uary 30th,  1807,  by  which  the  executrix  authorized  the  de- 
fendant *to  demand  and  receive  of  and  from  the  United  [  *  385 
States,  the  debt  above  mentioned,  being  the  balance  of 
account  as  awarded  by  arbitrators,  to  give  acquittances  for 
he  same,  and  to  compound,  if  necessary,  any  controversy 
respecting  it,  so  far  as  she,  as  executrix,  might  lawfully  do. 
The  executrix,  afterwards,  by  a  letter  written  by  her  agent, 
Ray  Sands,  from  Georgia,  to  the  defendant,  requested  him 
not  to  act  under  the  power,  which  letter  the  defendant  re- 
ceived prior  to  the  26th  of  March,  1807.  The  defendant, 
VOL.  III.  38  297 


385  CASES  IN  CHANCERY. 

1818.  afterwards,  in  pursuance  or  under  color  of  the  power  of 
^^-NX—V./  attorney,  on  the  13th  of  January,  1808,  received  from  the 
GOODRICH  United  States  18,328  dollars,  50  cents,  for  the  balance  due  to 
PESDLETON.  tne  estate  °f  tne  testator,  and  as  attorney  of  the  executrix, 
gave  a  discharge  to  the  United  States.  The  defendant  paid 
over  to  the  executrix  7,960  dollars,  11  cents,  but  retained 
the  residue  of  the  money  so  received  by  him,  being  10,363 
dollars,  39  cents,  against  her  consent.  The  bill  further  stated 
that  the  sum  so  received  by  the  defendant  was  less  than  the 
sum  due  from  the  United  States  to  the  estate  of  the  testator, 
and  less  than  could  have  been  obtained  before  giving  the 
power  to  the  defendant ;  that  the  sum  actually  received  was 
by  way  of  compromise,  and  which  compromise  the  defendant 
was  induced  to  make,  not  because  he  considered  that  sum  as 
the  full  amount  due,  but  with  a  view  to  obtain  possession  of 
it,  and  apply  it  to  his  own  use.  That  the  executrix,  residing 
in  Georgia,  and  the  defendant  in  New-York,  was  unable  to 
obtain  the  sum  so  withheld  from  her,  by  the  defendant ; 
though  the  sum  so  received  by  him  was  as  a  trustee  for  the 
estate  of  the  testator,  and  he  was  liable  to  account  for  the 
same  as  such  trustee.  That  the  executrix  died  in  Georgia 
on  the  3d  of  September,  1814.  That  on  the  9th  of  October, 
1817,  the  plaintiff  took  out  letters  of  administration,  with 
the  will  annexed,  in  New-York.  That  the  defendant  refuses 
to  account  with  the  plaintiff,  for  the  money  so  received,  or  to 
[  *  386  ]  pay  it ;  pretending  that  when  he  received  *the  power  of  at- 
torney as  aforesaid,  there  was  a  debt  due  to  him  from  the 
estate  of  the  testator,  and  that  it  was  agreed  between  him 
and  the  executrix,  when  he  received  the  power,  that  he  might 
retain  the  amount  of  his  debt  out  of  the  moneys  to  be  re- 
ceived by  him.  The  plaintiff  denied  any  such  agreement ; 
or,  if  it  was  ever  made  by  the  executrix,  it  was  through  igno- 
rance of  her  duties,  and  from  an  undue  confidence  reposed 
in  the  defendant,  who  professed  his  desire,  in  soliciting  the 
power,  to  promote  her  interest.  That  if  any  debt  was  due  to 
the  defendant,  it  was  a  simple  contract  debt  unsettled,  and 
that  the  estate  of  the  testator  was  then  indebted,  by  judg- 
ments and  specialties,  to  more  than  the  amount  of  all  the 
assets,  which  the  defendant  knew  ;  and  the  agreement,  if 
made,  would  have  been  a  devastavit  in  the  executrix,  &-c. 
The  bill  prayed  that  the  defendant  might  be  decreed  to 
account  with  the  plaintiff,  as  administrator,  with  the  will 
annexed,  for  the  moneys  so  received  by  him  from  the  United 
States,  and  to  pay  the  same,  &c. 

The  defendant,  on  th6  13th  January  last,  put  in  a  plea 
and  answer.  For  plea,  he  said,  that  every  cause  of  action  in 
the  bill  contained,  accrued  above  six  years  before  filing  tha 
293 


CASES  IN  CHANCERY.  386 

bill.     That  after  the  cause  of  action  (if  any)  arose,  to  wit,        1818 
in  June,  1808,  the  said  C.  M.,  the  executrix,  was  in  this  state,   ^^~^^. 
and  that  she,  by  her  will,  appointed  her  daughter,  Louisa     GOODRICH 
Shaiv,  executrix,  who  proved  the  will  in  Georgia.     That  the    p    Dv- 
sum  of  money,  (if  any,)  received  by  the  defendant,  was  not 
received  as  trustee  for  the  estate  of  P.  M.,  the  deceased  tes- 
tator, or  for  C.  M.  as  executrix,  and,  therefore,  the  defendant 
pleads  the  statute  of  limitations,  in  bar  of  the  plaintiff's  bill. 
That  in  support  of  the  plea,  and  as  to  so  much  of  the  bill  as 
charges  that  the  money  received  by  the  defendant  was  re- 
ceived as  trustee,  for  the  estate  of  P.  M.,  deceased,  and  that 
the  defendant  was,  and  is,  accountable  as  trustee,  he  answers, 
and  says,  that  he  denies  that  the  said  money  was  received  by 
him  as  ^trustee,  but  that  the  same  was  received  by  him  on       [  *  387  ] 
his  own  account,  and  retained  by  him,  at  the  time  of  the 
receipt,  for  his  own  use,  (being  applied  by  him  for  the  pay- 
ment of  a  debt  justly  due  to  him  from  P.  M.,  in  virtue  of 
a  special  agreement  between  the  executrix  and  him,)  and  not 
as  trustee. 

The  cause  came  on  to  be  heard  on  the  plea  in  bar  and  the 
answer  in  support  of  it. 

Hoffman  and  T.  A,  Emmet,  for  the  defendant.  To  show 
that  the  statute  of  limitations,  having  commenced  to  run, 
continued,  so  as  to  bar  the  plaintiff,  they  cited  2  Afk.  610. 
9  Vesey,  71.  76,  10  Vesey,  93.  3  P.  Wms.  309.  As  to 
the  form  of  the  plea,  and  that  a  general  denial  that  the  de- 
fendant did  not  receive  the  money  as  trustee,  was  sufficient 
in  its  support,  they  cited  Mitf.  PL  212.  217.  2  A'k.  393. 
395.  3  Afk.  70.  1  Anst.  59.  97.  6  Vcsey,  584.  586.  14 
Vesey,  65.  Coop.  Eq.  PL  226. 

Riggs  and  Boyd,  for  the  plaintiff,  contended,  that  the  plea 
was  bad,  as  being  double  and  multifarious,  and  did  not  go  to 
the  whole  bill.  They  cited  1  Bro.  C.  C.  404.  3  Anst.  738. 
1  Anst.  14.  59.  2  Vesey,  107,  108.  6  Vesey,  17.  Gilb. 
Ch.  58.  Coop.  Eq.  PL  223.  228.  1  Afk.  64.  Wyatfs 
Pr.  Reg.  324.  Mitf.  177.  3  P.  Wms.  143. 

THE  CHANCELLOR.  This  plea,  with  its  attendant  answer, 
is  insufficient. 

1.  In  the  first  place,  it  is  multifarious,  and  contains  distinct 
points.  It  states  that  the  cause  of  action  did  not  arise  within 
six  years,  and  that  the  plaintiff  was  barred  by  the  statute  of 
limitations ;  it  also  states,  that  the  sole  acting  executrix  of 
Phineas  Miller,  deceased,  made  her  will,  and  appointed  her 
daughter.  Louisa  Shaw,  executor  and  that  the  daughter  had 

299 


383*  CASES  IN  CHANCERY 

1818.  proved  the  will.  This  last  point  seems  to  be  wholly  uncon 
v^—x^-^x  nected  with  any  fact  forming  the  plea  *of  the  statute :  if  it 
GOODRICH  meant  any  thing,  it  meant  that  the  plaintiff  was  not  entitled  tc 
PENDLITON  tne  cnaracter  ne  assumed,  and  that  the  suit  ought  to  have  been 
brought  in  the  name  of  Z/otma  ^Aaw.  No  doubt,  it  may,  in 
certain  cases,  be  a  good  plea,  that  a  plaintiff,  who  assumes  to 
be  administrator,  was  not  entitled  to  that  trust ;  and  of  this  we 
have  an  example  in  Ord  v.  Huddkgton,  cited  in  Mitford's  PL 
p.  189.  But  I  do  not  mean  to  say,  that  the  fact  thus  stated 
would,  if  it  had  stood  by  itself,  have  been  a  good  plea.  It 
is  sufficient,  however,  for  the  present,  to  observe,  that  it  is 
put  forward  in  the  plea,  as  a  matter  of  defence,  or  it  would 
not  have  appeared  there,  and  the  rule  applies,  that  a  plea 
containing  two  distinct  points  is  bad.  Such  a  defective  plea 
was  overruled  by  Lord  Thurlow,  in  Whitbreadv.  Brockhurst ; 
(1  Bro.  404.)  and  Lord  Rosslyn  afterwards  observed,  (6 
Vesey,  17.)  that  he  would  not  allow  a  plea  of  the  statute  of 
frauds,  when  it  was  coupled  with  another  defence.  Every 
plea  must  rest  the  defence  upon  a  single  point,  and  upon  that 
point  create  a  bar  to  the  suit.  Such  is  the  policy  and  con- 
venience of  pleading,  and  the  party  must  resort  to  his  answer, 
if  he  wishes  to  avail  himself  of  distinct  matters.  It  is  fit  and, 
salutary  that  a  plea,  which  mixes  together  different  and  dis- 
cordant matter,  should  be  condemned  ;  for  it  uselessly  encum- 
bers the  record,  and  serves  no  other  purpose  than  to  produce 
confusion. 

2.  But  I  perceive  a  more  important  and  stronger  objection 
to  the  plea. 

The  defendant  is  charged  as  a  trustee,  and  with  a  breach 
of  his  trust,  and  with  fraud  in  the  execution  of  it.  These 
charges  formed  an  equitable  bar  to  the  plea  of  the  statute, 
and  they  ought  to  have  been  fully,  particularly,  and  precisely, 
denied  in  the  answer,  put  in  as  an  auxiliary  to  the  plea. 

The  bill  contains  the  following  charges,  viz.  that  the  testa- 
[  *  389  ]  tor,  Phineas  Miller,  had  a  large  demand  against  the  *  United 
States ;  that  the  defendant,  professing  a  friendship  for  Catha- 
rine Miller,  the  widow  and  sole  acting  executrix,  and  who 
resided  in  the  state  of  Georgia,  wrote  her  a  letter,  in  which 
he  takes  notice  of  her  demand,  and  expresses  a  belief  that, 
if  duly  authorized,  he  could  obtain  the  money  for  her,  and, 
at  the  same  time,  enclosed  to  her  a  power  of  attorney  to  be 
executed  and  given  to  him ;  that  under  that  solicitation  she 
executed  and  sent  him  the  power ;  that  she  afterwards  wrote 
him  a  letter  by  her  agent,  requesting  him  not  to  act  under 
that  power,  and  which  letter  he  received  in  March,  1807  ; 
that  the  defendant,  acting  under  color  of  the  power,  in  Janu- 
ary, 1808,  received  from  the  United  States  18,328  dollars 
300 


CASES  IN  CHANCERY.  383 

and  50  cents,  as  for  the  balance  due  to  the  testator,  which        1818. 
he  received  as  such  attorney  and  trustee,  and  in  that  char-  v^^—s/-^,' 
acter  gave  a  discharge  to  the  United  States ;  that  he,  contrary     GOODRICH 
to  her  consent  and  his  duty,  appropriated,  of  that  sum,  1 0,368    PENDL'ETOK. 
dollars  and  39  cents,  to  his  own  use ;  that  he  received  the 
money  upon  a  composition,  made  by  him  with  the  United  States, 
and  which  he  was  induced  to  make,  not  because  he  consid- 
ered the  sum  received  to  be  the  full  amount  due,  but  with  a 
view  to  obtain  possession  of  it,  and  to  apply  it  to  his  own 
use,  in  discharge  of  some  pretended  unsettled  debt  by  simple 
contract,  alleged  to  be  due  to  him  from  the  testator ;  that  the 
estate  of  the  testator  was  indebted,  by  judgment  and  special- 
ties, to  more  than  all  the  assets,  and  which  fact  was  well 
known  to  the  defendant,  and  if  the  executrix  had  assented  to 
any  such  appropriation,  she  would  have  committed  a  dcvas- 
tavit,  which  the  defendant,  from  his  professional  knowledge, 
also  knew. 

Upon  such  a  case,  as  stated  by  the  bill,  and  not  denied  by 
the  ansVver,  I  might  well  say,  with  Lord  Hardwicke,  in  Brere- 
ton  v.  Gamut,  (2  Aik.  240.)  when  he  overruled  a  plea  of  the 
statute,  as  not  being  particular  enough,  that  "  the  case  was 
of  such  a  nature  as  entitled  the  plaintiff  to  all  the  favor  the 
Court  could  show  her." 

*I  need  not  stay  to  show  that  the  defendant,  being  charged  [  *  390  ] 
with  a  fraudulent  breach  of  trust,  as  an  agent  or  trustee  for 
the  executrix,  cannot  set  up  the  statute  of  limitations,  so  long 
as  the  trust  is  admitted.  A  trustee  cannot  protect  himself 
by  the  statute  of  limitations  in  a  suit  brought  by  the  cestuy 
que  trust;  it  would  be  a  waste  of  time  to  look  for  authorities 
in  support  of  a  principle  so  well  known  and  established.  («) 
The  only  question  that  can  now  be  made  is,  whether  the  de- 
fendant  has  sufficiently  met  and  denied  the  charges  in  re- 
spect to  the  creation  and  breach  of  this  trust.  He  contents 
himself  with  denying,  in  the  plea,  that  the  money  received  by 
him  was  received  as  trustee  for  the  estate  of  Phineas  Miller, 
deceased,  and  with  denying,  in  the  answer,  that  the  money 
was  received  by  him  as  trustee,  and  with  averring  that  it  was 
received  on  his  own  account,  and  retained  for  his  own  use, 
under  some  agreement  not  detailed.  We  have  no  denial  of 
the  letter  professing  friendship,  and  soliciting  the  appoint 
ment,  nor  any  denial  of  the  receipt  of  the  letter  from  the  ex- 
ecutrix, suspending  the  power,  nor  of  the  subsequent  receipt 
of  the  money  from  the  United  States,  under  a  composition 
made  in  the  injurious  manner  and  for  the  unjust  purposes 
stated  ;  nor  have  we  any  denial  that  he  gave  the  United  States 

(«)  Vide  Decmtche  v.  Saretier,  ante,  p.  190 — 21G. 

301 


390  CASES  IN  CHANCERY. 

1Q18.       an  acquittance  or  discharge,  as  attorney  for  the  executrix 

\^^^-^_/  The  defendant  cannot  be  permitted  to  shelter  himself  undei 
GOODRICH     the  statute,  from  the  responsibility  of  such  grave  accusations, 

PI:NDLETON  ky  a  mere  simple  denial  of  the  receipt  of  the  money  as  trus- 
tee, while  he  leaves  all  those  facts  or  charges  uncontradicted 
which  establish  the  existence  of  the  trust,  and  show  that  he 
certainly  did  receive  the  money,  as  such  agent  or  trustee.  If 
such  a  general  denial,  without  meeting  specific  charges,  was 
sufficient,  every  trustee  might  escape  from  responsibility,  by 
means  of  the  statute,  and  be  left  to  his  own  construction  of 
what  was  intended  by  such  a  denial.  But  the  rules  of  plead— 

j  *  391  ]  ing  are  founded  in  better  *sense,  and  in  stricter  and  closer 
logic ;  they  require  the  defendant  to  answer,  particularly  and 
precisely,  the  charges  in  the  bill,  which  go  to  destroy  the  bar 
created  by  the  statute. 

The  rule  is,  that  the  equitable  circumstances  charged  in 
the  bill,  and  which  will  avoid  the  statute,  must  be  denied  by 
the  answer,  as  well  as  by  the  general  averment  in  the  plea; 
and  the  answer  in  support  of  the  plea  (and  which  is  indis- 
pensable to  its  support)  must  be  full  and  clear,  and  contain 
a  particular  and  precise  denial  of  the  charges,  or  it  will  not 
be  effectual  to  support  the  plea.  The  Court  will  intend  that 
the  matters  so  charged  against  the  pleader,  are  true,  unless 
they  be  fully  and  clearly  denied.  The  facts  requisite  to 
render  the  plea  a  defence,  must  be  clearly  and  distinctly 
averred,  so  that  the  plaintiff  may  take  issue  upon  them ;  and 
the  answer  in  support  of  the  plea  must  contain  particular  and 
precise  averments,  to  enable  the  plaintiff  to  meet  them,  as 
the  object  of  the  answer  is  to  give  the  plaintiff  an  opportunity 
of  taking  exceptions  to  the  traverse  of  the  facts  and  circum- 
stances charged  in  the  bill,  which,  if  true,  would  destroy  the 
bar  set  up.  These  general  principles  of  pleading  are  laid 
down  in  Lord  Redesdale's  Treatise  of  Pleading,  (p.  212. 
214.  236,  237.)  a  work  of  great  authority  on  the  subject: 
they  are  also  to  be  met  with  in  other  treatises  of  established 
character.  (Cooper's  Eq.  PL  227,  228.  Gilbert's  For. 
Rem.  58.  Van  Heythuysen's  Equity  Draftsman,  p.  443.) 
They  are,  indeed,  plain,  elementary  rules,  which  I  should 
have  apprehended  could  not  well  be  mistaken  by  the  equity 
pleader ;  but  we  will,  for  a  moment,  look  into  the  cases  in 
which  they  have  been  declared  and  applied. 

In  Price  v.  Price,  (I  Fern.  185.)  the  defendant  pleaded 
that  he  was  a  bonafide  purchaser  for  a  valuable  considera- 
tion ;  but  there  being  several  badges  of  fraud  stated  in  the 
bill,  though  the  defendant  in  his  plea  had  denied  them,  yet, 
because  he  had  not  denied  them,-  by  way  of  answer,  so  that  the 

\  *  392  ]  plaintiff  might  be  at  liberty  to  except,  the  plea  *was  overruled. 
302 


CASES  IN  CHANCERY.  39S 

In  The  Sovi\  Sea  Company  v.  Wymondsell,  (3  P.  Wms.  143.)         1813. 
the  bill  charged  fraud,  and  the  defendant  pleaded  the  statute  ^^^^i^> 
of  limitations,  and  denied  the  matters  of  fraud  ;   but  as  there     GOODRICH 
were  some  circumstances  not  fully  denied,  the  defendant  was    P£NDL'ET  )jr 
ordered  te  answer  the  bill,  with  liberty  to  the  plaintiff  to  ex- 
cept, and  *he  benefit  of  the  statute  was  to  be  saved  to  the 
defendant      In   Walter  v.   Glanville,    (3  Bro.  P.   C.  266.) 
sometime.0  referred  to,  to  show,  that  if  the  matters  charged 
are  answered  substantially,  it  will  do,  the  only  question  was, 
whether  the  answer  in  support  of  the  plea  did  not  fully  and 
particularly  (as  it  did  in    that  case)    answer    the   material 
charges  in  the  bill.     The  necessity  of  such  an  answer  was 
evidently  admitted  by  the  counsel,  and  by  the  Court ;  and  so 
it  must  huve  been  understood  by  Lord  Ch.  King,  who  made 
the  decree  appealed  from,  and  who,  subsequently,  in  the  case 
cited  from  P.  Williams,  required  such  a  full  and  particular 
answer. 

Lord  HardioicJce  frequently  noticed  and  supported  these 
rules  of  pleading.  Thus,  in  Brereton  v.  Gamul,  already  cited, 
the  plea  of  a  fine  levied  and  of  five  years  with  non-claim  was 
overruled,  as  not  being  particular  enough.  So,  in  3  Aik.  70, 
Anon.,  the  bill  charged,  that  since  the  death  of  the  intestate, 
the  administratrix  had  promised  to  pay  the  note  as  soon  as 
she  had  effects,  and  the  administratrix  pleaded  the  statute  of 
limitations,  and  that  she  made  no  promise.  But  the  chan- 
cellor held  the  plea  to  be  too  general,  as  there  was  a  special 
promise  charged  ;  and  he  ordered  the  plea  to  stand  for  an 
answer,  with  liberty  to  accept.  Again ;  in  Hildyard  v. 
Cressy,  (3  Aik.  303.)  the  defendant  pleaded  a  fine  and  non- 
claim  to  a  bill  for  a  discovery  whether  the  defendant  were  a 
bona  fide  purchaser,  for  a  valuable  consideration ;  and  it  ap- 
pearing that  the  defendant  had  not  made  a  complete  ansiver, 
and  therefore  not  properly  supported  his  plea,  the  plea  was 
ordered  to  stand  for  an  answer,  with  liberty  to  except.  In 
Radford  v.  Wilson,  *(3  Aik.  815.)  the  defendant  put  in  a  f  *  393  1 
plea  of  a  purchase  for  a  valuable  consideration,  without 
notice  ;  but  as  the  instances  of  notice  charged  in  the  bill  were 
particular  and  special,  it  was  held  that  a  general  denial  of 
notice  was  not  sufficient,  and  that  it  must  be  denied  as  spe- 
cially and  particularly  as  it  was  charged,  and  the  plea  was 
overruled. 

The  modern  cases  before  Lord  Eldon  contain  the  same  rules. 

Thus,  in  Jones  v.  Pengree,  (6  Vesey,  580.)  there  was  a 
plea  of  the  statute  of  limitations,  and  an  answer.  The  former 
was  objected  to  as  multifarious,  and  as  not  covering  enough ; 
and  the  answer  was  objected  to  as  overruling  the  plea  by  an- 

303 


393  CASES  IN  CHANCERY. 

1818.  swering  to  the  very  parts  to  which  the  plea  went,  ana  as  no' 
\^^s-*+~'  -lowering  the  material  charge,  which,  if  admitted,  would  have 
GOODRICH  laivcn  the  case  out  of  the  statute.  It  was  observed,  upon 
PENDLETON  *ne  argument-  that  the  plea  ought  to  go  to  every  thing,  ex- 
cept the  charges  introduced  into  the  bill  to  take  the  case  out 
of  the  statute,  and  which  it  was  necessary  to  answer.  The 
plea  was  overruled  as  covering  too  much,  and  ordered  to 
stand  for  an  answer,  with  liberty  to  except ;  and  though  that 
case  (as  well  as  the  one  which  followed)  does  not  strike  me 
as  distinguished  either  for  precision  or  clear  distinctions,  yet 
it  is  important  in  this  respect,  that  Lord  Eldon  adopts  and 
approves  of  the  rule,  in  the  very  words  of  Mitford,  "  that  if 
any  matter  is  charged  by  the  bill,  which  may  avoid  the  bar 
created  by  the  statute,  that  matter  must  be  denied  generally, 
by  way  of  averment  in  the  plea ;  and  it  must  be  denied  par- 
ticularly and  expressly,  by  way  of  answer  to  support  the  plea." 
The  reason  of  the  rule  his  lordship  stated  to  be,  that  the  plain- 
tiff was  entitled,  by  exceptions,  to  compel  the  defendant  to  an- 
swer precisely  to  all  the  cases  put  in  the  bill  as  exceptions  to 
the  statute.  In  the  next  case,  of  Bayley  v.  Adams,  (6  Vesty, 
586.)  there  was  a  plea  of  the  statute  of  limitations,  supported 
[  *  394  ]  *by  an  answer,  and  the  decision  was,  that  the  plea  was  not 
sufficiently  supported  by  the  answer,  because  the  charges  in 
the  bill  were  not  sufficiently  answered.  There  was  a  good 
deal  of  discussion  in  that  case,  on  the  point,  whether  the 
averments  meeting  the  charges  in  the  bill  ought  to  be  repeated 
in  both  plea  and  answer ;  and  two  decisions  in  the  Exchequer, 
(Pope  v.  Bush,  and  Edmundson  v.  Hartley,  1  Anst.  59.  97.) 
which  held,  that  if  both  plea  and  answer  met  and  denied  the 
same  charges  by  the  averments,  the  answer  would  overrule 
the  plea,  were  much  questioned.  I  need  not  now  enter  into 
that  discussion ;  and  even  the  Exchequer  cases  were  de- 
clared to  be  confined  to  awards.  It  seemed  to  be  admitted, 
throughout  the  case,  that  the  answer,  at  least,  must  contain 
a  full  and  particular  denial  of  the  charges ;  and  perhaps  the 
better  opinion  is,  that  a  general  denial  will  be  sufficient  in 
the  plea. 

The  result  is,  that  a  plea  of  the  statute  is  bad,  unless  ac- 
companied with  an  answer  aiding  and  supporting  it,  by  a 
particular  denial  of  all  the  facts  and  circumstances  charged 
in  the  bill,  and  which  form  an  equitable  bar  to  the  plea  of 
the  statute.  The  plea  in  this  case  has  no  such  accompany- 
ing answer,  and  it  must  be  overruled.  The  usual  order  in 
such  cases  is,  that  the  plea  stand  for  an  answer,  with  liberty 
to  the  plaintiff  to  except ;  but  in  some  of  the  cases  the  plea 
was  declared  to  be  overruled,  and  the  defendant  ordered  to 
304 


CASES  IN  CHANCERY. 

answer,  saving  to  himself  the  liberty  to  insist  on  the  statute  1313 
in  the  answer.  That  is  the  better  course  in  this  case ;  for  to 
order  the  plea  to  stand  for  an  answer,  with  liberty  to  the 
plaintiff  to  except,  would  be  prolonging  the  litigation,  as  we 
may  take  it  for  granted,  from  the  palpable  insufficiency  of 
the  plea  as  an  answer,  that  the  plaintiff  would  except,  and 
the  defendant  be  finally  compelled  to  a  fuller  answer. 

I  shall,  therefore,  overrule  the  plea,  with  costs,  and  order 
*the  defendant  to  answer  in  six  weeks,  when  he  will  still  have       [  *  395  ] 
the  liberty  of  insisting  on  the  benefit  of  the  statute  in  his 
answer 

Order  accordingly. 


THOMPSON  against  BERRY  AND  VAN  BEUREN. 

[Affirmed,  17  Johns.  436.    Applied,  9  Paige  166.] 

Where  the  plaintiff  was  sued  at  law,  on  notes  alleged  by  him  to  be 
usurious,  and  he  suffered  a  verdict  and  judgment  to  be  taken  against 
him,  without  making  a  defence,  or  applying  to  this  Court,  on  a  bil] 
of  discovery,  in  due  season,  he  was  held  concluded,  and  not  entitled 
to  relief. 

An  assignment  of  a  debt,  usurious  in  its  creation,  to  a  third  person,  who 
has  knowledge  of  the  original  transactions,  will  not  cover  it  from  the 
scrutiny  of  the  Court.  And  where  sufficient  ground  appeared  to 
support  the  charge  of  usury,  a  reference  was  ordered  to  a  master,  to 
take  an  account,  &c. 

THE  bill  stated  that  the  plaintiff,  having  become  embar-  My  \ 
rassed  and  pressed  for  money  to  pay  certain  debts,  made  a 
note,  dated  March  12, 1807,  in  favor  of  John  Ward,  (a  broker,) 
for  500  dollars,  payable  in  sixty  days;  and  on  the  19th  of 
March,  he  made  another  note  to  J.  W.  for  the  like  sum,  pay- 
able in  60  days,  for  which  he  received  of  J.  W.  1,000  dollars, 
but  was  obliged  to  allow  him  interest  thereon,  at  the  rate  of 
two  per  cent,  per  month.  That  the  plaintiff  was  under  the 
necessity  of  renewing  these  notes,  as  they  became  due,  and 
on  such  renewal,  to  allow  the  same  rate  of  interest ;  that  the 
notes  continued  to  be  renewed,  from  time  to  time,  until,  by 
adding  the  interest  to  principal,  he  became  indebted  to  /.  W. 
in  the  sum  of  2,089  dollars,  for  which  he  gave  his  note ;  that 
J.  W.  was  at  that  time  himself  indebted  to  the  defendant 
Berry,  by  notes,  on  which  usurious  interest  had  been  allowed 
to  13.,  at  the  rate  of  two  and  a  half  or  three  per  cent,  per 
rrtunth  ;  and  the  plaintiff,  in  order  to  satisfy  Ward,  *and  en-  [  *  396  J 
able  him  to  comply  with  the  demand  of  B.,  was  compelled 

VOL.  III.  39  305 


CASES  IN  CHANCERY 

1818.  to  make  another  note  to  Ward,  for  the  said  2,089  dollars, 
~^~^s-**~'  and  to  procure  it  to  be  endorsed  by  John  E.  .RwsseZ  ana 
THOMPSON  Edward  Childs,  which  note,  so  endorsed,  was  delivered  to 
BERRY.  tne  defendant  Z?.,at  his  request,  in  exchange  for  (lie  notes  of 
Ward  to  B. ;  and  on  such  exchange,  B.  exacted  and  received, 
for  the  thirty  days  the  plaintiff's  note  had  to  run,  interest,  at 
two  and  a  half  or  three  per  cent.,  and  also  fifty  dollars,  ad- 
vanced by  Ward,  as  a  premium  for  making  the  exchange  of 
the  notes.  That  on  the  1st  of  November,  1810,  the  plaintiff 
made  another  note  for  1,219  dollars,  payable  three  months 
after  date,  to  Evandcr  Childs,  being  in  consideration  of  the 
renewal  of  certain  other  notes,  made  at  usurious  interest. 
That  on  the  2d  of  November,  1811,  the  plaintiff  made  another 
note  to  E.  Childs,  for  1 ,976  dollars,  payable  in  60  days,  on 
which  usurious  interest  was  exacted,  and  given  in  exchange 
and  renewal  of  former  usurious  notes.  That  interest  was 
paid  on  all  the  notes  above  mentioned,  from  their  inception 
to  their  last  renewal,  at  the  rate  of  two  and  a  half  or  three 
per  cent,  a  month.  That  the  defendant,  to  whom  the  notes 
were  transferred  by  Childs,  had  knowledge  of  the  usurious 
considerations,  and  did  himself  receive  usurious  interest; 
and  that  he  became  possessed  of  the  last-mentioned  note,  for 
1,976  dollars,  as  being  the  accumulated  amount  of  prin- 
cipal and  usurious  interest,  at  the  rate  aforesaid,  after  many 
renewals  of  a  note,  or  original  loan,  of  one  hundred  dollars, 
given  by  Leu-is  I.  Costigan,  to  the  defendant  B.,  and  endorsed 
by  the  plaintiff,  from  motives  of  friendship.  That  the  plaintiff 
thus  became  liable,  upon  his  three  notes,  to  5,284  dollars  and 
87  cents. 

That,  prior  to  the  10th  of  May,  1811,  the  plaintiff  became 
indebted  to  the  defendant  Van  Beuren,  (a  broker,)  in  a  cer- 
tain sum,  by  means  of  usurious  loans,  the  amount  of  which  the 
plaintiff  could  not  now  ascertain.  That  E.  Childs,  J.  J.  Ward, 
[  *  397  ]  and  John  E.  Russel,  were  also  indebted  *to  Van  Beuren  on 
notes,  all  of  which  were  founded  on  usurious  loans ;  that  the 
defendants,  confederating  together  to  get  possession  of  the 
plaintiff's  property,  procured,  by  their  attorney,  judgments  to  be 
entered  upon  the  demands  of  the  defendant  B.  against  the 
plaintiff,  by  confession,  bond,  and  warrant  of  attorney,  given  as 
security,  amounting  to  5,284  dollars  and  27  cents,  and  also  an 
assignment  from  the  defendant  V.  B.  to  the  defendant  Berry, 
of  four  judgments  against  the  plaintiff,  and  against  Childs, 
Ward,  and  Russel,  on  their  notes  or  endorsements,  and  which 
judgments,  at  the  time  of  the  assignment,  were  usurious,  and 
well  known  and  understood  so  to  be.  between  the  defend- 
ants ;  and  that  the  defendant  B.  further  exacted  large  sums 
for  forbearance  thereon,  particularly  the  sum  of  228  dollars 
306 


CASES  IN  CHANCERY.  39- 

and  34  cents,  from  the  plaintiff,  in  a  note  given  by  him,  and        1818. 
endorsed  by  T.  Colytr.     That  instead  of  the  plaintiff  being  ^^-^-^^ 
indebted  to   the  defendant  B.  the  sums  above  mentioned,     THOMPSON 
amounting  to  6,363  dollars  and  41  cents,  there  would  be,  if       BERRY 
the  account  was  fairly  taken  upon  their  money  transactions, 
and  lawful  interest  only  allowed,  in  every  case,  upon  the  sums 
actually  lent,  a  considerable  balance    due  to   the  plaintiff. 
That  the  defendant  B.  has  caused  executions  to  be  issued  on 
the  judgments  against  the  property  of  the  plaintiff,  which  is 
advertised  for  sale  by  the  sheriff.     The  plaintiff  waived  all 
forfeiture,  and  was  willing  to  pay  what  was  legally  and  justly 
due,  and  prayed  for  an  injunction,  and  for  general  relief,  &c. 

Several  affidavits  were  annexed,  verifying  the  facts  stated 
in  the  bill. 

The  defendant  B.,  in  his  answer,  denied  all  knowledge  of 
the  transactions  between  the  plaintiff  and  Ward,  but  believed 
it  probable,  that  certain  sums  were  paid  on  the  renewal  of 
the  notes.  He  set  forth,  at  length,  the  particulars  of  the 
transactions  with  Ward  and  the  plaintiff,  which  it  is  unne- 
cessary to  state  here. 

The  answer  of  Van  Beuren  also  stated  the  particular 
transactions  as  to  the  notes  mentioned ;  and  that  in  Sep-  [  *  398  J 
tember,  1810,  the  notes  being  unpaid,  he  commenced  suits 
against  the  plaintiff,  Childs,  Ward,  and  Russel,  respectively, 
as  maker  and  endorsers ;  and  issues  having  been  regularly 
joined  in  the  suits,  they  were  noticed  for  trial  at  the  sittings 
in  New- York,  in  April,  1811,  when  inquests  were  regularly 
taken,  by  default,  pursuant  to  notice,  and  that  Childs  was  a 
witness  for  the  plaintiff,  in  three  of  the  causes,  and  judgments 
were  entered  up  in  the  Supreme  Court,  on  the  10th  of  May, 
1811,  on  the  verdicts  so  found  by  the  jury. 

Replications  were  filed,  but  no  proofs  were  taken  on 
either  side.  The  cause  was  brought  to  a  hearing  on  the 
pleadings. 

Sampson,  for  the  plaintiff. 

C.  Baldwin,  for  the  defendants 

THE  CHANCELLOR.  The  plaintiff  appears  to  have  been 
most  grievously  oppressed,  by  a  series  of  usurious  exactions, 
and  it  seems  indispensable  to  justice,  that  such  a  victim 
should  be  relieved.  There  is  sufficient  ground  for  disre- 
garding the  judgment  confessed  in  January,  1812,  and  fiw 
opening  the  accounts  at  large,  from  the  very  commencement 
of  the  dealings ;  nor  can  it  be  permitted  that  the  usury,  ac- 
cumulated while  the  plaintiff  was  in  the  hands  of  Ward, 

307 


398  CASES  IN  CHANCERY. 

1S18.       should  be  covered   by  the  assignment  of  that  debt  to  the 

v^^-x,--..^  defendant  Berry,  who,  by  his  own  answer,  appears  to  have 

THOMPSON     had  sufficient  knowledge  of  those   dealings.     The   statute 

BEKRY        limiting  interest  is  the  old  and  established  law  of  the  land  ; 

and  it  is  the  duty  of  the  Court  to  support  it.     Usury  vitiates 

every  transaction;  and  even  a  bonajide  holder  of  the  tainted 

instrument  cannot  protect  himself.     The  Court  has  nothing 

to  do  with  the  theories  that  are  now  afloat,  condemning  all 

[  *  399  ]  legal  limitations  of  ^interest.  The  policy  of  the  law  rests 
with  the  Legislature,  not  with  the  Courts  of  justice.  But  I 
am  not  prepared  to  allow,  that  the  wise  statesmen  and  pro- 
found jurists  of  every  preceding  age,  have,  on  this  point,  been 
Utility  and  the  abettors  of  a  stupid  and  barbarous  system.  Laws  against 
°against  usury  have  uniformly  prevailed  in  all  enlightened  and  com- 

usHry.  mercial  nations,  ancient  and  modern ;  and  this  fact  weighs 

heavily  against  an  untried  theory.  I  should  doubt  whether 
there  be  any  just  analogy  between  the  interest  of  money  and 
the  price  of  articles  of  commerce,  which  is  left  to  regulate 
iiself.  The  loan  of  money  creates  the  interesting  relation  of 
debtor  and  creditor,  which  has,  in  all  ages  of  the  world,  pro- 
duced fearful  consequences ;  and  to  preserve  the  laws  of 
justice  in  that  relation,  has  hitherto  required  the  utmost 
sagacity  on  the  part  of  government,  and  the  greatest  wisdom 
and  firmness  in  the  administration  of  justice.  I  should  ap- 
prehend dangerous  effects  upon  the  public  morals,  if  creditors 
were  left  at  liberty  to  demand  what  rate  of  interest  they 
please,  and  compound  interest  when  they  please,  without 
being  under  any  admonition  of  human  laws.  I  consider  the 
statute  against  usury  to  be  a  check  to  hard-hearted  avarice, 
and  a  protection  thrown  around  the  necessitous.  "  Nothing 
is  clearer  to  my  rnind,"  said  that  very  able  lawyer  and  states- 
man, Lord  Ch.  Redesdale,  "than  that,  in  a  commercial  coun- 
try, the  statute  of  usury  ought  to  be  strictly  enforced." 

As  to  the  judgment  in  favor  of  Van  Beuren,  the  plaintiff 
is  concluded,  and  cannot  be  relieved.  He  suffered  a  verdict 
to  be  taken  against  him  at  law,  when  he  might  have  pleaded 
the  statute  of  usury,  or,  upon  certain  terms,  obtained  the  aid 
of  a  bill  of  discovery.  He  neglected  to  use  his  means  of 
defence  in  due  season,  and  it  is  now  too  late. 

The  Court  accordingly  directed  a  reference  to  a  master  to 
take  and  state  an  account  between  the  plaintiff  and  defend- 
ant Berry ;  and  that,  in  taking  the  same,  all  the  matters, 
accounts,  charges,  dealings  and  transactions,  included  in 

[  *  400  ]  *the  judgment  for  5,284  dollars  and  87  cents,  confessed  by 
the  plaintiff  to  the  defendant  Berry,  and  mentioned  in  the 
pleadings,  be  opened  from  the  time  of  the  first  loan  from 
John  I.  Ward,  as  stated  in  the  pleadings ;  and  that  the  de- 
308 


CASES  IN  CHANCERY . 

Pendant  Berry  be  credited  only  with  the  moneys  covered  by  1818 
the  said  judgment,  and  actually  loaned  to  the  plaintiff,  or  paid  v^x--v-- 
to  or  for  him,  or  received  by  him,  together  with  the  lawful  KIRK 
interest  thereon,  from  the  times  the  same  were  loaned,  paid, 
or  received.  And  it  was  further  directed,  that  the  master 
make  rests,  at  such  times  as  it  shall  appear  that  the  accounts 
were  liquidated,  or  the  notes  renewed  ;  and  that,  for  the  better 
taking  the  accounts,  the  parties  were  to  be  examined  on  in- 
terrogatories, and  to  produce  all  books  and  papers  in  their 
custody  or  power,  relating  thereto,  upon  oath,  before  the 
master,  as  he  should  direct. 

Decree  accordingly. 


KIRK  against  HODGSON  and  others. 

Where  copartners  in  trade  engaged  a  clerk,  as  book-keeper  and  cashier, 
at  a  fixed  salary,  for  two  years,  with  an  understanding  that  he  should 
have  a  larger  compensation  as  the  business  extended  and  his  duties 
increased  ;  and  during  the  third  year  it  was  discovered  that  the  clerk 
had  overdrawn  moneys  belonging  to  the  firm,  and  applied  the  same 
to  his  own  use,  of  which  he  afterwards  rendered  a  statement ;  but  a 
majority  of  the  partners,  afterwards,  continued  him  in  their  employ : 
Held,  that  !:e  was  entitled  to  an  increased  compensation  for  his  services 
after  the  second  year,  the  fact  of  continuing  him  in  service,  after  a  dis- 
covery of  his  improper  conduct,  being  an  admission  that  he  had  not 
forfeited  his  right  to  an  increased  allowance.  The  act  of  a  majority 
of  the  partners  of  a  firm  binds  the  rest. 

IN  1813,  Eastburn,  Kirk,  and  Downes,  entered  into  part-  June  ift,  an* 
nership  as  booksellers,  and  employed  the  defendant  Hodgson  July"2- 
as  a  clerk,  and  as  their  book-keeper  and  cashier,  *at  a  salary  I  *  401  ] 
of  500  dollars  for  the  first  year,  and  600  dollars  for  every 
subsequent  year ;  and  he  continued  in  that  employment  until 
the  filing  of  the  original  bill  against  him,  on  the  10th  of  April, 
1816,  and  which  stated,  that,  on  the  2d  of  April,  1816,  the 
plaintiff,  K.,  having  examined  the  books  of  account,  with  a 
view  to  ascertain  the  state  of  the  accounts,  discovered  a  large 
deficiency.  That  the  defendant,  on  application,  made  a 
statement,  in  which  he  set  forth  3,917  dollars  and  84  cents, 
which  he  had  loaned  to  himself,  and  secretly  appropriated  to 
his  own  use,  and  had  not  entered  the  same  in  the  books,  &c. 
The  bill  also  stated,  that  -H.  was  about  to  leave  the  state,  and 
prayed  for  a  discovery,  and  an  account,  and  for  a  writ  of  ne 
exeat.  On  filing  this  bill,  in  the  name  of  E.,  K.,  and  D.}  and 

309 


401  CASES  IN  CHANCERY. 

1818.       which  was  sworn  to  by  K.,  the  defendant  H.  was  held  tc 
v^^-sx-^x'  bail  in  the  sum  of  2,600  dollars. 

KIRK  Eastburn,  who  acted  for  himself,  and  Doivnes,  who  wa= 

HODGS".*.  absent,  refusing  to  permit  their  names  to  be  used  as  plaintiffs 
against  H.,  K.,  on  the  4th  of  May,  1816,  filed  a  supple- 
mental and  amended  bill  against  H.,  E.,  and  D.,  in  which  he 
charged,  that  the  greater  part  of  the  sum  taken  by  H.  wa 
with  the  privity  and  connivance  of  the  defendant  E.,  and  to 
deceive  the  plaintiff;  and  that  H.  was  induced  not  to  make 
the  entry  of  the  said  sum,  for  the  purpose  of  deceiving  the 
plaintiff  as  to  the  state  of  the  partnership  funds.  That  E., 
claiming  to  act  for  himself  and  D.,  continues  still  to  employ 
.ff.  as  a  clerk  of  the  firm,  &c. 

Prayer  for  a  discovery,  .and  that  the  defendant  E.  may 
be  directed  to  discharge  the  defendant  H.  from  the  employ- 
ment of  the  firm,  and  that  a  receiver  of  the  property  and 
moneys  of  the  firm  may  be  appointed,  and  that  the  defend- 
ants may  come  to  an  account  with  the  plaintiff,  &c. 

The  answer  of  Eastburn  admitted  the  employment  of  H., 
as  clerk,  at  a  salary  of  500  dollars  for  the  first,  and  600  dol- 
[  *  402  ]  lars  for  the  next  year,  with  an  understanding,  ^however,  that 
his  salary  should  be  increased  with  the  increase  of  business, 
and  of  his  services.  That  the  deficit  in  the  cash  account  was 
discovered  in  March,  1816;  but  //.,  being  absent,  drd  not 
learn,  until  April  3d,  1816,  that  the  deficit  was  wholly  occa- 
sioned by  the  overdrawing  of  H.,  who  then  exhibited  a  state- 
ment, by  which  it  appeared,  that  he  had  taken,  and  not 
charged  in  the  leger,  3,917  dollars  and  84  cents,  and  had 
taken  and  charged  653  dollars  and  18  cents,  making  4,571 
dollars  and  2  cents ;  and  had  charged  his  salary  for  three 
years  at  1 ,700  dollars,  and  400  dollars  for  the  board  of  E., 
K.  and  B. 

The  defendant  E.  denied  all  knowledge  of  the  moneys 
but  what  he  derived  from  the  account  exhibited  by  H.,  and 
the  schedule  annexed.  He  denied  all  collusion  with  H.,  and 
any  knowledge,  or  even  suspicion,  of  the  overdrawing  by  H., 
until  informed  as  aforesaid ;  and  he  averred,  that  no  part  of 
the  money,  so  taken  by  H.,  was  ever  applied  to  the  use  of 
the  defendant  E.  That,  after  the  discovery  of  the  fact  of  its 
being  so  taken,  he  continued  H.  in  the  service  of  the  firm, 
but  took  the  management  of  the  cash  concerns  in  his  own 
hands.  That  he  believed  that  the  morals  of  H.  were  not 
depraved,  but  that  he  was  led  to  overdraw  from  negligence 
in  his  private  concerns,  coupled  with  the  expectation  of  an 
increased  allowance  for  his  services,  rather  than  from  any 
intention  to  deceive.  That  the  defendant  D.  was  then  in 
Europe,  and  had  left  the  defendant  E.  a  full  power  of  at 
310 


CASES  IN  CHANCERY.  40S 

torney,  dated  29th  November,  1815,  to  act  in  his  name,  and        1818. 
for  him.  S^X-N/--*^ 

The  defendant  Downes  also  put  in  his  answer  on  the' 1st        KIRK 
of  June,  1817,  which  agreed  with  that  of  E.  HODGSON 

The  defendant  H.,  in  his  answer,  admitted  the  overdrawing 
by  him,  but  denied  that  it  was  done  secretly,  or  with  any 
fraudulent  views,  but  under  circumstances  he  deemed  excu- 
sable. That  he  was  assured  by  E.  that,  after  his  second 
year,  his  salary  should  be  enlarged,  as  the  business  extended, 
and  his  duties  increased  ;  that  the  business  increased,  and  his  [  *  403  ] 
services  were  very  great,  and  that  he  continued  to  perform 
his  services  from  a  conviction  that  he  should  receive  an  in- 
creased compensation ;  that  he  had  no  idea  that  he  had 
overdrawn  to  so  large  an  amount,  until  in  March,  1816,  when 
he  discovered  it  to  his  astonishment,  but  believed  that  the  firm 
would  allow  him  an  increase  of  salary  equal  to  the  deficit. 
That  his  salary  ought  to  have  exceeded  1,000  dollars  per 
annum,  and,  also,  a  compensation  for  extratservices. 

Several  witnesses  were  examined  in  the  cause,  which  was       •&«  !*• 
brought  to  a  hearing  the  15th  of  June. 

T.  A.  Emmet,  for  the  plaintiff. 
Wdls  and  Bristed,  contra. 

THE  CHANCELLOR.     This  is  a  suit  by  one  of  the  three       July  t 
copartners  of  the  late  firm  of  Eastburn,  Kirk,  and  Co.,  against 
the  other  two  copartners,  and  against  their  clerk  and  book- 
keeper.    Hodgson,  the  clerk,  is  charged  with  a  breach  of 
trust  in  secret  and  unauthorized  appropriations  of  money ; 
and  Eastburn,  one  of  the  copartners,  acting  in  the  name  of  ' 
himself  and  the  other  partner,  Downes,  is  charged  as  an  ac- 
complice, and  that  the  moneys  were  taken  with  his  privity 
and  connivance,  and  for  his  use. 

The  defendants  have  all  answered,  and  proof  has  been 
taken.  The  charges  as  to  the  clerk  are  admitted,  but  there 
is  no  proof  of  any  of  the  injurious  allegations  against  East- 
burn;  nor  have  they  even  been  attempted  to  be  proved. 
There  is  no  ground  for  any  decree  as  against  him,  and  he  is 
justly  entitled  to  the  costs  of  his  defence.  It  is  stated,  and 
admitted,  that  Eastburn  acted  in  the  name  and  on  the  behalf 
of  Downes,  who  was  then  absent  in  Europe,  and  that  he  thus 
united  in  himself  the  powers  of  a  majority  of  the  firm ;  but 
the  charges  in  the  supplemental  bill  of  privity  and  connivance 
OP  .he  part  of  Eastburn  are  confined  to  *him  individually,  and  [  *  404 
do  no*,  refer  to  his  representative  character.  They  are  per- 
sonal accusations ;  and  though  the  plaintiff  is  justly  chargeable 

311 


104  CASES  IN  CHANCERY. 


1818.       w^  costs  for  having  made  them,  there  does  not  seem  to  be 
\^*~^-**-s  the  same  reason  why  he  should  pay  costs  also  to  the  defend- 

KIRK        ant'  Dowries.     He  is  not  implicated  in  the  allegations,  and  he 
Ho  V  so        was  °^  necessity  rnade  a  party  defendant,  since  his  agent  and 
partner,  Eastburn,  refused  to  permit  either  of  their  names  to 
be  used  as  complainants. 

The  only  real  question  in  the  case  is,  as  to  the  allowance 
to  Hodgson,  and  what  special  directions  ought  to  be  given  to 
the  master,  in  taking  and  stating  the  account  against  him. 

There  is  no  dispute  as  to  the  amount  of  moneys  which 
Hodgson  has  received,  and  must  account  for.  It  was  fully 
and  frankly  disclosed  by  him  when  the  discovery  of  his  over- 
drawings  was  first  made.  It  is  also  agreed,  that  his  certain 
salary  was  500  dollars  for  the  first  year,  and  600  for  each  of 
the  two  succeeding  years  ;  but  there  was  also  encouragement 
given,  and  assurances  made,  of  an  increase  of  compensation. 
The  defendants  Eastburn  and  Downes  admit,  in  their  an- 
swers, that  there  was  an  understanding  with  him,  when  he 
was  employed,  that  his  salary  should  be  increased  with  the 
increase  of  business,  and  of  his  services.  It  is  also  proved  by 
Eastburn,  in  his  testimony  as  a  witness,  that  he  proposed  to 
the  present  plaintiff,  that  Hodgson  should  have  an  increase 
of  salary  as»  the  business  increased,  and  the  plaintiff  agreed 
to  the  proposition,  and  this  proposal  he  then  communicated 
to  Hodgson.  Another  witness  (/Fm.  B.  (jtilley)  has  heard 
the  plaintiff  say,  that  Hodgson  ought  to  have  a  larger  salary. 
and  that  the  one  originally  agreed  on  was  inadequate.  The 
same  admissions  of  the  plaintiff  were  also  made  to  Wm.  Van 
Hook.  After  these  acknowledgments  of  all  the  partners,  and 
after  these  assurances  originally  given  to  Hodgson,  there 
[  *  405  ]  '  can  be  *no  doubt  of  his  claim  to  a  compensation  for  the  two 
last  years,  beyond  the  original  stipulated  sum. 

Not  only  the  increase,  but  the  amount  of  that  increase,  has 
also  been  ascertained  and  admitted.  The  witnesses  Gilky 
and  Van  Hook  both  think,  that  the  present  plaintiff  mentioned 
to  them  the  sum  of  1,000  dollars,  as  the  proper  salary  allow- 
ance, and  Eastburn  says  also,  that  the  services  of  Hodgson 
were  worth  that  sum.  The  admissions  and  proof  are  uni- 
form and  abundant  in  favor  of  his  great,  incessant  and  labo- 
rious services,  as  clerk.  A  witness  examined  on  the  part 
of  the  plaintiff  (D.  D.  Arden)  says,  that  there  is  no  general 
rule  about  the  salaries  of  clerks  in  bookstores  ;  that  he  thinks 
600  dollars  "  a  very  moderate  "  compensation  ;  that  Hodgson 
devoted  14  hours  a  day  to  his  duty,  and  earned  1,000  dollars 
a  year. 

I  have  no  doubt,  therefore,  of  the  just  title  and  equitable 
claim  of  the  defendant  Hodgson  to  an  increased  allowance 
312 


CASES  IN  CHANCERY.  405 

to  1,000  dollars,  unless  that  title  and  claim  have  been  lost  by  1813. 
his  breach  of  trust.  I  was  strongly  inclined  to  think,  upon  ^r^s-**^, 
the  argument,  that  the  defendant  Hodgson  had  forfeited  that  KIRK 
claim,  but  upon  a  more  mature  examination  of  the  case,  I  do 
not  now  think  so.  A  majority  of  the  firm  continued  him 
afterwards  in  their  employment ;  and  this  fact  is  decisive  in 
favor  of  the  continuance  of  his  rights.  It  is  evidence,  also, 
that  he  had  not  forfeited  their  confidence,  and  that  the  over- 
drawings  charged  and  confessed  were  not  understood  by 
them  to  be  acts  of  intentional  fraud.  They  csnnot  be  set  up 
by  the  firm  of  Eastburn,  Kirk,  and  Co.,  against  his  claim,  founded 
on  their  promises  and  acknowledgments,  and  his  services. 
That  firm  had  a  perfect  right  to  continue  him,  if  they  thought 
proper.  They  were  the  best  judges  of  the  case,  under  all 
its  circumstances ;  and  they  are  estopped  from  setting  up 
these  acts  of  his,  as  ground  of  discharge  to  themselves  from 
prior  and  just  engagements. 

It  is  true  that  the  plaintiff,  as  one  of  that  firm,  did  not 
*agree  to  continue  Hodgson  as  clerk,  but  the  majority  of  the  [  *  406  ] 
firm  had  an  equal  right  to  exercise  their  judgment,  and  to 
continue  him.  The  act  of  the  majority  must  govern  in  these 
little  communities,  as  well  as  in  every  other,  unless  special 
provision  be  made  to  the  contrary.  Where  the  major  part 
of  the  part  owners  of  a  ship  settled  an  account  of  the  profits, 
it  was  held  to  conclude  the  rest.  (Robinson  v.  Thompson, 
1  Fern.  465.)  All  that  can  be  required  is  good  faith  in  the 
discharge  of  copartnership  duties ;  and  there  is  nothing  in 
this  case  to  impeach  it. 

I  shall,  therefore,  direct,  that  the  master  allow  to  the  defend- 
ant Hodgson  a  salary  of  1 ,000  dollars  a  year,  for  the  last  two 
years,  instead  of  the  600  dollars  originally  stipulated.  With 
respect  to  the  charges  of  Hodgson,  for  boarding  the  plaintiff, 
and  the  defendant  Eastburn,  and  Messrs.  B.  and  «/.,  the  • 
master  is  to  inquire  whether  the  whole  or  what  part  of  these 
charges  has  been  included  in  the  settlement  of  the  copart- 
nership accounts  of  Eastburn,  Kirk,  and  Co.,  by  the  arbitrators 
to  whom  these  accounts  were  referred,  and  .to  admit  such  of 
them  as  have  been  allowed  by  the  arbitrators.  The  master 
is,  also,  to  be  directed  to  take  and  state  an  account  of  the 
separate  interest  of  the  plaintiff  in  the  balance  that  may  be 
found  due  from  the  defendant  H.  to  the  house  of  E.,  K.,  &/• 
Co.,  and  of  the  separate  interests  of  the  defendants  E.  and 
V.,  and  report  thereon. 

Decretal  order  accordingly. 

VOL.  III.  40  313 


407*  CASES  IN  CHANCERY. 

1818. 
v.  *SHARP  against  SHARP  impleaded  with  HARNED. 

SHARP. 

\Vherethe  widow  of  a  deceased  partner  filed  a  bill  against  the  executon 
of  her  husband,  for  a  discovery  and  account  of  t4ie  copartnership  es- 
tate and  effects,  and  the  surviving  partner  demurred  to  that  part  of  the 
bill  which  sought  a  discovery,  alleging  that  it  might  subject  him  to  pen- 
alties under  the  revenue  laws  of  the  United  States,  but  without  show- 
ing how  or  for  what  cause  he  should  incur  a  penalty  by  a  discovery, 
the  Court  overruled  the  demurrer ;  such  a  general  allegation  not  be- 
ing sufficient  to  bar  the  discovery,  in  the  first  instance. 

•Wj  2.  THIS  was  a  bill  by  the  plaintiff,  as  widow  of  Robert  Sharp, 

deceased,  against  the  defendants,  as  executors  of  Robert  Sharp,, 
with  whom  the  defendant,  John  Sharp,  was  in  copartnership 
at  the  time  of  the  death  of  Robert  Sharp.  The  bill  was  for 
a  discovery  and  account  of  the  copartnership  estate  and 
effects,  in  which  the  plaintiff  was  stated  to  be  interested  under 
the  will  of  her  late  husband. 

The  defendant,  John  Sharp,  answered  parts  of  the  bill,  and 
demurred  to  so  much  of  the  bill  as  sought  a  discovery  of  the 
nature  and  object  of  the  trade  carried  on  by  the  late  copart- 
nership, on  the  ground  that  the  plaintiff  had  no  interest 
therein,  and  that  a  discovery  might  subject  the  defendant,  to 
pains  and  penalties,  under  the  revenue  laws  of  the  United 
States 

Caines,  for  the  defendant,  and  in  support  of  the  demurrer. 
Griffin,  for  the  plaintiff. 

THE  CHANCELLOR  overruled  the  demurrer,  and  ordered 
the  defendant  to  answer.  He  said,  that  the  plaintiff  disclosed 
by  her  bill  that  she  had  an  interest  in  the  copartnership  prop- 
erty, and  was  entitled  to  a  full  discovery.  There  was  nothing 
stated  or  required,  that  necessarily  led  to  any  forfeiture ;  and 
[  *  408  ]  if  such  a  general  allegation  was  sufficient  to  ^protect  a  party 
from  making  a  discovery,  it  could  be  used  as  a  pretext  in 
every  case.  It  ought  to  appear  either  by  the  bill,  or  be  stated 
in  the  demurrer,  why  and  wherefore  a  forfeiture  would  be 
the  consequence  of  the  discovery.  In  Chauncey  v.  Tahourden, 
(2  Atk.  392.)  it  was  shown  by  the  demurrer.  How  far  it 
might  be  material  or  proper  to  disclose,  in  much  detail,  the 
nature  and  objects  of  the  commerce  carried  on  by  the  house, 
might  be  a  question  hereafter.  The  defendant  could  no' 
bar  all  inquiry,  in  the  first  instance. 

Demurrer  overruled. 
314 


CASES  IN  CHANCERY.  403 

1818. 

Ex  parte 
irt  j.     r\  QOACKEN- 

Lx parte  C^UACKENBOSS.  BOSS. 

Application,  under  the  statute,  sess.  24.  ch.  30.  sect.  7.  for  infant  trus- 
tees to  convey,  &c.,  must  be  by  petition,  and  not  on  motion ;  and 
the  course  is  to  direct  a  reference  of  the  petition  to  the  master  to  ex- 
amine, and  ascertain  the  facts,  and  report  the  same,  with  his  opinion. 

It  seems,  that  if  the  trust  is  not  in  writing,  or  the  infant  has  an  interest, 
or  if  it  be  a  doubtful  case,  the  cestuy  que  trust  will  be  put  to  his  bill. 

PETITION  of  the  heirs  and  devisees  of  John  P.  Quack-  July  9. 
enboss,  deceased,  stating  that  Isaac  Hanson,  in  his  lifetime, 
and  at  the  time  of  his  death,  held  certain  lots  of  land,  and 
also  certain  choses  in  action,  in  the  petition  mentioned,  in 
trust  for  them,  and  under  an  express  trust  created  by  deed, 
and  that  he  died,  leaving  two  infant  children.  Prayer,  that 
those  infant  trustees  might  be  directed  to  convey  the  land, 
and  assign  the  securities  to  the  petitioners,  &c. 

THE  CHANCELLOR.  This  application  is  under  the  7th 
section  of  the  act  of  the  24th  sess.  ch.  30.,  concerning  idiots, 
Lunatics,  and  infant  trustees,  and  which  section  was  copied 
from  the  stat.  of  7  Ann.  c.  19.  The  statute  gives  *the  juris-  [  *  409  J 
diction  of  the  Court,  by  petition  ;  and  Lord  Eldon,  in  Evelyn 
v.  Forster,  (8  Vesey,  96.)  refused  to  make  an  order  in  such  a 
case  upon  motion  merely.  If  the  trust  did  not  appear  in 
writing,  or  if  the  infant  had  an  interest,  or  if  it  was  a  doubtful 
case,  the  Court  has  said  (ex  parte  Vernon,  2  P.  Wms.  548., 
and  see,  also,  2  Vesey,  559.)  that  it  would  not  interfere,  even 
on  petition,  but  would  put  the  cestuy  que  trust  to  his  bill.  In 
this  case,  it  is  only  necessary  to  ascertain  whether  the  infants 
be  really  trustees  within  the  act,  according  to  the  allegation 
in  the  petition,  and  the  usual  course  is  to  order  a  master  to 
inquire  and  report.  This  was  done  in  the  case  ex  parte 
Pernon,  and  also  in  the  cases  ex  parte  Benton,  and  ex  parte 
Burton.  (Dickens,  394,  395.) 

I  shall,  accordingly,  direct,  that  the  petition  be  referred  to 
one  of  the  masters  of  this  Court,  to  examine  into  the  matters 
of  fact  stated  therein,  and  to  report  the  same,  with  his  opinion 
thereon,  and  that  he  give  notice  to  the  guardian  or  next  friend 
of  the  infants,  of  the  time  and  place  of  such  inquiry. 

Order  accordingly. 

315 


109  CASES  IN  CHANCERY. 

1818. 

DENNING 

SUIJH.  DENNING  against  SMITH  and  others. 

Where  a  bill  is  filed  by  an  executor,  for  a  settlement  of  his  acco'in 
and  for  disclosures  as  to  distribution,  &c.,  the  defendants  are  not  en- 
titled, on  petition,  to  an  inspection  of  the  accounts  and  vouchers  of 
the  executor,  to  enable  them  to  answer  the  bill. 

July  20.  GRAHAM,  solicitor  for  defendant,  upon  petition,  moved, 

that  the  plaintiff  deposit  with  the  register  his  accounts  and 
vouchers,  as  surviving  executor  of  Thomas  Smith,  who  was 
*  410  ]  surviving  executor  of  William  Smith.  The  bill  *was  for  a 
settlement  of  his  accounts,  and  for  directions  as  to  distribu- 
tion ;  and  the  object  of  the  petition  was,  to  have  an  inspec- 
tion of  the  papers,  to  enable  the  defendants  to  answer 
the  bill. 

Riggs,  contra,  contended,  that  the  motion  was  unprece- 
dented, vexatious,  and  unnecessary;  that  when  they  came 
to  the  accounts  before  the  master,  all  the  accounts  and  vouch- 
ers must  be  produced  and  examined.  The  bill. only  requires 
the  defendants  to  admit  what  they  have  received,  or  deny 
what  they  are  charged  with.  Orders  have  never  gone  far- 
ther than  to  require,  before  answer,  the  production  of  deeds, 
set  forth  with  a  profert. 

Per  Curiam.     Motion  denied. 
316 


CASES  IN  CHANCERY. 


410 


BEEKMAN  and  others  against  WATERS  and  others. 

[Followed,  1  Paige  425.] 

The  plaintiff,  on  petition,  after  answer,  and  exception  to  the  answer, 
may  amend  his  bill,  by  adding  new  charges  and  new  parties,  upon 
payment  of  costs,  if  a  new  or  further  answer  be  required;  and  the 
plaintiff  must  amend  the  office  copies  of  the  bill  taken  out  by  the  de- 
fendants who  have  appeared,  and  who  are  entitled  to  six  weeks,  within 
which  to  answer  the  amendments. 

In  case  new  defendants  be  added  to  the  bill,  the  plaintiff  may  have  pro- 
cess ofsubpwna,  and  proceed  against  them  in  the  usual  course. 

RIGGS,  for  plaintiffs,  on  petition  founded  on  affidavit, 
moved  for  leave  to  amend  his  bill,  after  answer  and  excep- 
tions to  the  answer  submitted  to  be  answered,  by  adding  new 
charges  and  new  parties. 

W.  Duer,  contra. 

*THE  CHANCELLOR  thought  that  the  plaintiff,  upon  the 
reasons  shown,  was  entitled  to  the  motion,  and  that  the  only 
question  was  as  to  the  terms.  The  bill  may  be  amended 
after  answer,  according  to  the  15th  and  17th  rules  of  this 
Court.  It  is  allowed  in  England,  upon  payment  of  a  fixed 
sum  for  costs,  as  20s.,  405.,  or  3/. ;  (2  Bro.  291.  Dickens, 
58.  Newland's  Pr.  81.)  but  we  have  no  such  practice; 
and  if  a  new  or  further  answer  be  required,  it  ought  to  be 
upon  payment  of  costs  to  be  taxed. 

The  following  order  was  entered :  "  Ordered,  that  the 
plaintiffs  be  at  liberty  to  amend  their  bill,  by  adding  such 
other  parties  defendants  as  they  shall  be  advised,  and  by  in- 
troducing such  further  statements  and  charges  as  they  shall 
deem  necessary ;  and  that,  when  such  amendments  shall  be 
made,  and  the  plaintiffs  shall  have  amended  the  copies  of 
the  bill  already  taken  out  by  the  defendants  who  have  ap- 
peared and  answered,  that  the  defendants  shall  answer  such 
amendments  within  six  weeks  thereafter,  and  after  service 
of  a  copy  of  this  order  on  their  solicitor,  or,  in  default,  that 
the  bill,  as  amended,  be  taken  pro  confesso  against  them,  and 
an  order  for  that  purpose  may  be  entered  ;  that  such  amend- 
ments shall  not  prejudice  the  injunction  issued,  nor  invalidate 
the  order  for  taking  the  bill  pro  confesso  against  two  of  the 
defendants ;  that,  with  regard  to  such  new  defendants  as  may 
be  added  to  the  bill,  the  plaintiffs  may  have  process  of  sub- 
poena against  them,  and  proceed  thereon  as  usual." 

J17 


1818. 
*-NX-*<* 

BEERMAN 

v. 
WATERS. 


August  3 


[*4ll 


412* 


CASES  IN  CHANCERY 


1818. 

«*-v^^ 

WOODWARD 
v. 

SCHATZELL. 


August  17. 


[*413 


*WOODWAKD  against  SCHATZELL  and  others. 

[Followed,  2  Paige  619.] 
A  writ  of  ne  exeat  repubhca  may  issue  against  a  foreigner,  or  citizen  of 

another  state,  and  on  demands  arising  abroad ;  but  the  writ  will  be 

discharged  on  the  defendant's  giving  security  to  abide  the  decree. 
To  sustain  the  writ,  sufficient  equity  must  appear  on  the  face  of  the  bill. 

Mere  apprehension  that  the  defendant  will  misapply  funds  in  his 

hands,  or  abuse  his  trust,  is  not  sufficient 

GARR,  for  the  plaintiff,  moved  for  a  writ  of  ne  exeat  and 
injunction. 

The  bill  stated  that  on  the  1st  of  September,  1815,  the 
plaintiff  and  Alexander  Cranston  of  Neic-York,  Andrew  Al- 
exander of  Belfast,  in  Ireland,  and  the  defendant  S.  of 
Lexington,  in  Kentucky,  entered  into  partnership  for  the  pur- 
pose of  transacting  mercantile  business  in  Kentucky.  That 
the  plaintiff  was  to  receive  one  third  of  the  real  profits. 
That  large  sums  were  advanced  by  the  other  two  partners, 
and  13,000  dollars  by  the  plaintiff.  That  the  plaintiff  con- 
ducted the  business,  part  of  the  time,  in  Kentucky,  and  the 
defendant  &  part  of  the  time.  That  the  defendant  £.  dis- 
solved the  partnership  on  the  24th  of  September  last,  on  the 
previous  request  of  the  other  partners.  That  the  defendant 
S.,  in  October  last,  sold  at  auction  partnership  effects  to  the 
amount  of  11,500  dollars,  on  six  months'  credit.  That  the 
defendant  £.  closed  the  accounts  in  the  Kentucky  banks,  and 
transferred  the  partnership  balances  to  his  own  credit.  That 
the  partnership  owned  other  large  property  standing  in  the 
name  of  the  defendant  S.  That  the  defendant  S.  designs 
to  retain  the  sole  use  and  control  of  the  partnership  effects , 
that  he  will  be  unable  to  respond,  if  the  effects  should  be  mis- 
used, and  not  duly  applied ;  and  that  he  intends  to  delay 
closing  *the  accounts,  and  ivill  withhold  from  the  plaintiff  his 
just  share. 

Prayer  for  a  ne  exeat,  and  for  an  injunction  restraining  the 
defendant  S.  from  further  interfering  with  the  effects,  &c. 

Affidavit  that  the  defendant  S.  intends  to  depart  for  Ken 
tucky,  and  is  indebted  to  the  plaintiff  in  12,000  dollars. 

THE  CHANCELLOR.     As  the  defendant  is  a  resident  in 
Kentucky,  and  as  the  transactions  upon  which  the  demand 
of  the  plaintiff  is  founded,  took  place  there,  it  might  be 
made  a  question  whether  the  ne  exeat  ought  to  apply  to  the 
case.     Lord  Eldon,   in  Dick  v.  Swinton,  (1   Fes.    fy  Bea 
371.)  observed,  that  "  this  writ  was  a  most  powerful  instru 
318 


CASES  IN  CHANCERY.  413 

ment;  and  he  never  applied  it  without  apprehension."     But        ]818. 
upon  a  review  of  the  cases,  I  think  the  jurisdiction  and  prac-  \^^~v~^y 
tice  of  the  Court  are  settled  in  favor  of  the  writ,  when  applied    WOODWARD 
even  to  the  case  of  foreigners,  and  to  demands  arising  abroad.    SCHATZIXL 

Lord  Thurlow  observed,  in  Atkinson  v.  Leonard,  (3  Bro. 
Ch.  Cas.  222.)  that  Lord  Northington  thought  this  process 
ought  not  to  be  extended  to  foreigners ;  yet,  in  that  very 
case,  Lord  Thurlow  allowed  it,  in  favor  of  one  inhabitant  of 
the  island  of  Antigua  against  another ;  and  he  afterwards, 
upon  argument,  consented  to  discharge  the  writ,  on  condition 
that  the  defendant  gave  sufficient  security  to  abide  the  decree. 
So,  also,  in  a  much  earlier  case,  (IVhitehead  v.  Marat,  Bumb. 
183.)  the  Court  of  Exchequer  obliged  a  defendant,  who  was 
a  foreigner,  to  give  security  to  abide  the  decree  until  answer 
and  further  order.  The  writ  was  also  allowed  to  one  foreigner 
against  another,  in  De  Carriere  v.  De  Calonne,  (4  Ves.  577.) 
but  Lord  Rosslyn  admitted,  that  it  was  "  very  delicate  to 
interfere  as  against  foreigners,  whose  occasions  or  misfortunes 
had  brought  them  here,  by  an  application  of  this  writ  to 
*them  ;  "  and  he  thought  it  ought  to  be  simply  a  case  of  equity,  [  *  414  ] 
affording  no  ground  to  sue  at  law. 

Lord  Hardwicke  is  stated  to  have  said,  in  Robertson  v. 
Wilkie,  (Amb.  111.  Dickens,  786.  S.  C.)  that  it  was  a  reason 
with  him  not  to  grant  the  writ  where  the  defendant  lived 
out  of  the  kingdom,  and  the  transaction  was  on  the  faith  of 
having  justice  where  he  resided.  But  in  that  case,  the  parties 
were  partners,  and  the  plaintiff  resided  in  London,  and  the 
defendant  in  Minorca;  and  the  balance  of  accounts  was 
sworn  to,  and  the  ne  exeat  allowed,  and  afterwards  discharged, 
on  the  defendant  giving  security  in  a  mitigated  sum  to  perform 
the  decree. 

These  cases  are  all  decidedly  in  favor  of  the  writ,  or  its 
substitute,  security  to  abide  the  decree. 

So,  again,  in  Roddam  v.  Hethcrington,  (5  Vesey,  91.)  the 
ne  exeat  was  allowed  in  favor  of  a  resident  in  England  against 
a  resident  in  the  West  Indies,  upon  a  demand  arising  there ; 
and  the  counsel  for  the  defendant  would  not  raise  the  ob- 
jection that  the  defendant  resided  abroad,  because,  as  they 
observed,  Lord  Thurlow,  in  Atkinson  v.  Leonard,  after  a 
considerable  discussion,  had  overruled  that  objection.  In 
Howdcn  v.  Rogers,  (1  Ves.  fy  Bea.  129.)  the  writ  was 
granted  against  a  defendant  resident  in  Ireland,  who  came  to 
England  only  for  a  temporary  purpose ;  and  though  the  de- 
mand arose  in  Ireland,  Lord  Eldon  said  he  could  not  "  dis- 
tinguish that  case  from  Atkinson  v.  Leonard,  and  several 
subsequent  cases,  from  the  West  Indies,  from  Scotland,  and 
from  Ireland.  The  question  was,  whether  he  had  any  dis- 

319 


414 


1818. 
^v— *» 

BEEKMAN 

v. 
PECK. 


[*415] 


CASES  IN  CHANCERY. 

cretion  to  refuse  the  writ — a  question  upon  which  he  was 
bound  by  those  decisions  ;  and  the  utmost  he  could  do  for  the 
defendant's  relief,  was  to  discharge  him  on  giving  security  tc 
abide  the  decree." 

The  real  point,  then,  in  this  case,  is,  whether  the  plaintiff 
shows  sufficient  equity  on  the  face  of  his  bill  to  sustain  the 
writ ;  and  I  incline  to  think  he  does  not,  and  that  a  *proper 
case  ought  to  be  made  out  to  my  entire  satisfaction.  The 
defendant  has  strictly  done  nothing  which  he  was  not  au- 
thorized to  do  as  a  partner ;  and  though  the  plaintiff  appre- 
hends that  the  defendant  may  misapply  the  funds  and  abuse 
his  trust,  yet  no  such  acts  have  actually  taken  place,  and  the 
accounts  have  not  been  settled.  It  does  not  appear  to  me 
that  the  mere  apprehensions  of  the  plaintiff  will  warrant  the 
ne  exeat,  or  even  the  injunction  restraining  the  defendant 
from  interfering  with  the  partnership  accounts  and  effects. 

Motion  denied. 


BEEKMAN  against  PECK. 

[Applied,  7  Paige  512;  8  Id.  180.] 

A  decree  entered  by  default,  and  enrolled,  was  set  aside,  on  motion,  on 
payment  of  costs,  the  plaintiff  having  been  previously  served  with 
notice  of  the  motion,  and  copies  of  the  affidavits,  on  which  it  was  in- 
tended to  be  made 

August  is.         A  DECREE,  by  default,  was  entered  in  June  last,  and 
enrolled. 

Sherwoad,  for  the  defendant,  now  moved  to  set  aside  the 
decree,  on  affidavits,  showing  that  the  defendant  had  merits, 
and  that  the  answer  was  filed  in  June  last,  and  that  the  delay 
in  filing  the  answer  arose  from  unavoidable  circumstances 
The  solicitor  for  the  plaintiff  had  been  duly  served  with  copies 
of  the  affidavits,  and  notice  of  the  motion. 

Wood-worth,  contra,  objected  to  the  application  by  motion 
and  contended  that  it  ought  to  be  by  petition  ;  and  he  further 
objected,  that  the  decree  had  been  enrolled,  and  \  lat  the  delay 
was  not  sufficiently  accounted  for. 

[*  416  ]  *THE  CHANCELLOR  was  of  opinion  that  the  application  in 

the  shape  of  a  petition  was  riot  indispensable,  and  that  the 
320 


CASES  IN  CHANCERY.  41  (J 

plaintiff,  by  means  of  the  previous  notice  and  service  of  copies  1818 

of  the  papers,  had  all  the  requisite  information.     The  motion  \^*-^~*+-<> 

was  granted,  on  payment  of  the  costs  of  the  default  and  sub-  SANGER 

sequent  proceedings ;  and  the  injunction,  which  had  been  WOOD 
made  perpetual  in  the  decree,  by  default,  was  continued  until 
further  order. 


SANGER  and  others  against  WOOD. 

Where  the  plaintiffs  sued  the  defendant  on  his  contract  at  law,  and,  a 
few  days  before  the  trial  of  the  cause,  discovered  facts  amounting  to  a 
fraudulent  concealment  by  the  defendant,  but  proceeded  to  take  a 
verdict  for  the  amount  claimed,  on  which  judgment  was  entered  up  ; 
and  they,  afterwards,  filed  their  bill,  in  this  Court,  for  relief  against 
the  contract,  on  the  ground  of  the  fraud ;  Held,  that  by  going  to  trial, 
and  taking  judgment,  the  plaintiffs  had  made  their  election  of  their 
remedy  at  law ;  and  the  remedies  at  law  and  equity  being  inconsis- 
tent, they  were  bound  by  that  election. 

Any  decisive  act  of  the  party,  with  knowledge  of  his  rights,  and  of  the 
fact,  determines  his  election,  in  the  case  of  inconsistent  remedies. 

THE  bill  stated,  that  in  April,  1812,  the  plaintiffs  and  de-  J™  29,  and 
fendant,  by  purchase  at  a  sheriff's  sale,  were  tenants  in  com-  ug'  ' 
mon  of  a  moiety  of  a  grist-mill,  saw-mill,  and  carding-machine, 
and  about  40  acres  of  leasehold  estate  adjoining  thereto,  in 
lot  98,  in  Manlius,  and  the  proportions  of  interest  of  each 
were  stated  in  the  bill,  those  of  the  plaintiffs  amounting  to- 
gether to  2,128  dollars  and  48  cents,  and  that  of  the  de- 
fendant to  1,203  dollars  and  50  cents.  The  defendant  was 
owner  of  the  other  moiety,  and  it  was  agreed  that  he  should 
take  charge  of,  and  demise  the  estate.  On  the  1st  of  Octo- 
ber, 1812,  the  defendant  demised  the  whole  to  Wm.  Warner, 
for  two  years,  at  a  rent  of  700  dollars  per  annum,  one  year's 
rent  being  paid  in  advance.  *  Warner  soon  after  absconded  ;  [*417j 
and  on  the  30th  of  November,  1814,  the  defendant,  with  the 
assent  of  the  plaintiff,  sold  the  premises  to  Jonathan  Jones, 
Jacob  B.  Merrick,  and  Charles  MerricJc,  for  6,500  dollars, 
payable  by  instalments  in  ten  years,  with  interest,  and  the 
purchasers  took  possession  of  the  premises.  The  bill  further 
stated,  that  the  defendant  represented  to  the  plaintiffs  the 
impossibility  that  the  purchasers  would  ever  pay  for  the  prop- 
erty, and  the  plaintiffs  were  thereby  induced  to  sell  their  in- 
terest in  the  premises  to  the  defendant,  for  866  dollars,  being 
less  than  half  of  the  amount  at  which  it  had  been  valued ; 

VOL.  III.  41  321 


417 


CASES  IN  CHANCERY. 


1818.       and  the  parties  signed  a  memorandum  of  this    sale  on  the 
^^-^~**-<'  4th  of  September,  1815,  in  which  it  was  agreed,  that  all  rents 
SANGER       due  from   Warner,  or  for  the  premises,  or  recoverable  from 
WOOD.        Jones  and  Merricks,  on  rescinding  the  sale  to  them,  should 
be  divided  between  the  parties,  in  the  same  manner  as  if  the 
sale  had  not  been  made ;  and  "  if  the  sale  to  Jones  and  Mcr 
ricks  could  be  enforced,  it  is  to  be. " 

That  the  plaintiffs  have  lately  discovered,  that  before,  or 
about  the  time  the  first  instalment  on  the  sale  to  Jones  and 
Merricks  became  due,  in  the  autumn  of  1815,  Jones  offered 
to  the  defendant  to  make  payment  of  the  6,500  dollars,  in 
window-glass,  at  the  wholesale  price,  and  to  give  good  security 
for  that  amount,  with  interest.  That  W.  Soulden  and  Co.,  by 
letter,  offered  the  defendant  security  to  perform  any  terms 
of  payment  Jones  should  make,  payable  in  window-glass ; 
and  on  the  16th  of  February,  1816,  the  agreement  was  re- 
duced to  writing,  and  executed  by  the  defendant,  and  W 
Soulden  and  Co.,  by  which  the  latter  covenanted  to  pay  the 
defendant  6,500  dollars,  and  interest,  then  amounting  to 
7,000  dollars,  in  window-glass,  at  the  wholesale  price ;  viz 
1,400  dollars  in  hand,  and  the  like  sum  yearly,  for  four  years 
with  interest ;  and  to  give  his  bond,  and  a  mortgage  on  the 
premises,  as  security ;  and  that,  to  indemnify  W.  Soulden  and 
Co.,  it  was  agreed  between  the  defendant  and  Jones,  (who 
f*418]  had  become  solely  interested  *in  the  purchase  by  him  and 
the  Merricks,}  that  the  defendants  should  convey  the  prem- 
ises to  IV.  Soulden  and  Co.,  and  the  defendant  exonerated 
Jones  from  any  claim  for  the  purchase  money,  or  for  the  use 
and  occupation  of  the  premises,  from  the  time  of  the  sale  to 
Jones  and  Merricks,  in  1814,  to  the  16th  of  February,  1816. 
That  the  defendant  received  the  1 ,400  dollars  of  W.  Soulden 
and  Co.,  on  the  contract.  That  the  defendant  concealed  from 
the  plaintiffs  that  he  had  obtained  any  security  from  W. 
Soulden  and  Co.  for  the  moneys  due,  on  the  sale,  to  Jones  and 
Merricks;  and  on  the  29th  of  April,  1816,  applied  to  the 
plaintiffs  to  carry  into  effect  the  contract  of  sale  of  the  4th 
of  September,  1815,  on  the  ground  and  pretence  that  the 
contract  of  sale  to  Jones  and  Merricks  had  failed.  That  the 
defendant  was  then  bound,  by  his  situation  and  agency,  to 
have  made  a  full  disclosure  to  the  plaintiffs  of  the  subsisting 
contract  with  W.  Soulden  and  Co.,  and  of  his  agency  therein  ; 
but  the  plaintiffs  were  left  in  ignorance  of  the  fact,  and  were 
led  to  believe,  from  the  prior  representations  of  the  defend- 
ant, that  all  prospect  of  payment  from  Jones  and  Merricks 
was  hopeless ;  and  that  the  matter  remained  in  the  same 
situation  as  on  the  4th  of  September,  1815  ;  and  the  plaintiffs 
executed  a  release,  dated  29th  of  April,  1816,  to  the  defend 
322 


CASES  IN  CHANCERY.  418 

ant,  ot  all  their  interest  in  the  premises,  under  the  agreement        1818. 
of  the  1st  of  April,  1812,  upon  the  terms  of  the  agreement  ^*~~ v—w^ 
of  sale  of  the  4th  of  September,  1815.     That,  continuing  in       SANGER 
ignorance  of  the  defendant  having  obtained  the  security  from      .  VVOOD 
IV.  Soulden  and  Co.,  the  plaintiffs  sued  the  defendant  at  \a.w, 
for  the  moneys  due  under  the  agreement  of  the  29th  of  April, 
1816,  and  the  cause  was  tried  at  the  Madison  circuit,  in  1817. 
That,  a  few  days  before  the  trial,  the  plaintiffs  obtained  some 
information  of  the  fraud  of  the  defendant,  in  suppressing  ail 
information  of  the  security  given  to  him  by  W.  Soulden  and 
Co.,  and  the  plaintiffs,  at  the  trial,  offered  to  prove  the  facts 
above  stated,  to  establish  the  fraud;  but  the  *judge  before       [*419] 
whom  the  cause  was  tried,  was  of  opinion,  that  the  plaintiffs' 
remedy  was  in  chancery,  and  directed  a  verdict  to  be  taken 
for  the  plaintiffs,  for  the  balance  of  rent  received  by  the  de- 
fendant of  W.   Warner,  being  116  dollars  and  6  cents,  due 
the  plaintiffs,  and  for  the  sum  of  866  dollars,  mentioned  in 
the  agreement  of  the  29th  of  April,  1816.     That  the  plain- 
tiffs waive  all  claim  at  law  to  the  moneys  so  recovered,  ex- 
cept for  the  rent,  and  submit  their  claim  to  the  Court ;  and 
vrayed,  that  they  may  be  relieved  from  the  release  made  by 
them  to  the  defendant,  and  be  let  in  to  the  benefit  of  the  secu- 
rity given  by  W.  Soulden  and  Co.  to  the  defendant ;  and  that 
the  defendant  may  account  for  all  sums  received  by  him,  or 
reserved  on  any  lease  of  the  premises,  &c. 

The  defendant,  in  his  answer,  denied  that  he  was  ever 
the  agent  of  the  plaintiffs,  in  relation  to  the  premises.  He 
admitted,  that  on  the  30th  of  November,  1816,  he  agreed  to 
sell  the  premises  to  /.,  M.,  and  M.  for  6,500  dollars,  payable 
in  instalments,  with  interest,  and  that  the  contract  comprises 
the  whole  interest  of  all  the  parties ;  but  he  denied  that  he 
made  this  agreement  with  the  assent  of  the  parties,  or  either 
of  them ;  or  that  he  made  it  as  agent  of  the  plaintiffs ;  but 
icted  in  his  individual  capacity,  and  covenanted  to  lease  the 
premises  for  the  remainder  of  the  term  which  he  and  the 
plaintiffs  had  in  the  same,  and  that  the  plaintiffs  should  exe- 
cute the  lease.  The  defendant  alleged,  that  the  inability  of 
«/.,  M.,  and  M.  to  perform  their  contract  was  known  to  the 
plaintiffs ;  and  that  the  plaintiff  G.  proposed  a  division  and 
sale  of  the  premises,  on  the  ground  of  that  inability ;  and 
that  the  property  was,  accordingly,  advertised  for  sale,  at 
auction,  by  all  the  parties ;  and  the  defendant,  as  the  highest 
bidder,  purchased  it  at  2,705  dollars ;  and  the  parties,  after- 
wards, executed  the  memorandum  of  the  agreement  of  the 
4th  of  September,  1815.  That  he  never  received  any  pay- 
ment of  /.,  M.,  and  M.,  nor  any  rent;  that,  conceiving  that 
*the  plaintiffs  had  no  interest  in  the  contract  with  W  S.  &/•  [  *  420 

323 


420 


CASES  IN  CHANCERY. 


1818. 

**~N/-*^ 

SANG  KB. 

v. 

WOOD.    • 
June  29. 

August  24. 


Co.,  he  did  not  inform  them  of  it ;  and  denies  any  fraudulen 
intent  or  concealment,  &c. 

The  cause  came  on  to  be  heard  on  the  bill  and  answer ; 
and  was  argued  by  Wells,  for  the  plaintiff,  arid  Riggs,  for  the 
defendant. 

THE  CHANCELLOR.  If  the  plaintiffs  had  done  uothing  to 
affirm  the  contract  of  the  29th  of  April,  1816,  after  the 
agreement  between  the  defendant  and  W.  Soulden  and  Co. 
had  come  to  their  knowledge,  I  should  have  been  strongly 
inclined  to  relieve  them  from  that  contract.  It  is  true,  the 
allegation  of  fraud,  and  of  any  direct  and  authorized  agency, 
on  the  part  of  the  defendant,  is  denied  in  the  answer ;  and 
we  have  no  other  proof  in  the  case  but  such  as  the  answer 
and  the  documents  mentioned  in  the  pleadings  afford.  But, 
from  those  documents,  I  am  induced  to  think,  the  defendant 
was  bound  to  have  disclosed  to  the  plaintiffs,  in  April,  1816, 
his  prior  dealings  with  Soulden,  as  well  as  the  new  agree- 
ment with  Jones,  of  the  January  preceding.  The  relationship 
between  the  parties  arising  under  the  original  contract  of 
1812,  and  the  agency  which  the  defendant,  in  fact,  assumed 
in  the  management  and  disposition  of  the  entire  interest  of 
all  the  parties,  imposed  upon  him  the  duty  of  a  frank  and 
full  disclosure  of  the  whole  case,  when  the  parties  came  to  a 
final  conclusion  of  their  concern,  in  April,  1816.  If  the 
contract,  of  the  4th  of  September  preceding,  had  been  defin- 
itive and  absolute,  then  the  defendant  would  not  have  been 
under  any  obligation  to  disclose  his  subsequent  negotiations 
with  Jones  and  with  Soulden,  who  came  in  to  assist  Jones, 
But  that  contract  of  sale  was  not  absolute,  for  it  was  expressly 
declared,  that,  in  case  the  sale  to  Jones  and  Merricks  could  be 
enforced,  it  was  to  be,  and  the  contract  in  that  case  to  be 
void.  The  plaintiffs  ought  to  have  been  informed  what  Jones 
had  since  done,  and  what  Soulden  had  since  promised,  so 
*that  they  might  have  exercised  their  judgment  on  the 
question,  whether  the  original  agreement  could  have  been 
enforced,  and  how  far  the  substitution  of  Soulden  and  Co. 
was  a  mere  continuation  (as  I  think  it  was)  of  the  original 
agreement. 

For  these  reasons,  I  should  have  been  inclined  to  have 
relieved  the  plaintiffs.  The  case,  however,  as  it  appears 
before  me,  is  not  of  a  very  gross  kind,  or  one  presenting 
claims  for  any  extraordinary  indulgence  In  my  opinion, 
the  plaintiffs  may  justly  be  considered  as  having  elected  to 
take  their  remedy  at  law  under  the  contract  of  April,  1816. 
The  bill  states  that  the  plaintiffs  sued  at  law  under  that  last 
contract,  and  which  was,  of  course,  in  affirmance  of  it ;  and 
324 


CASES  IN  CHANCERY.  4 

that,  a  few  days  before  the  trial  at  the  Madison  circuit,  they  1818. 
discovered  the  fraud  now  set  up  as  a  ground  to  rescind  that  ^*-^~* 
contract.  And  yet,  notwithstanding  that  discovery,  they  go  SANGER 
to  trial  in  the  suit  on  that  contract,  and  take  a  verdict  for  the 
moneys  due  from  the  defendant  under  it,  and,  afterwards, 
judgment  is  entered  up  by  them  on  that  verdict ;  and,  in 
April  last,  they  even  apply  to  this  Court  for  leave  to  take  out 
execution  at  law  on  the  judgment  so  recovered.  The  last 
motion  was,  indeed,  made  on  the  ground  that  it  might  not 
prejudice  their  rights  in  this  suit ;  but  I  am  induced  to  think 
they  had  already  waived  those  rights  by  their  previous  pro- 
ceedings. The  suit  at  law,  and  the  action  here,  are  incon- 
ktent  with  each  other,  since  the  one  affirms,  and  the  other 
» leks  to  disaffirm,  the  contract  in  question.  It  is  probable 
th  i  amount  of  the  judgment  may  have  been  already  collected, 
and  the  plaintiffs  could  not,  for  a  moment,  be  permitted  to 
keep  the  moneys  recovered  under  that  contract,  if  they 
should  succeed  in  their  bill  to  have  it  annulled.  In  a  case 
where  the  remedies  sought  are  so  absolutely  repugnant  to 
each  other,  the  plaintiffs  ought  to  have  made  their  election 
at  on  ;e,  after  they  came  to  the  knowledge  of  the  facts.  If 
they  meant  to  have  disannulled  the  contract  of  April,  *1816, 
then  it  was  vexatious,  as  well  as  useless,  to  have  gone  on  to 
A  triul,  and  judgment  and  execution.  They  had  no  right  to 
iry  the  experiment  how  much  they  could  recover  at  law  under 
'ho  contract,  (for  the  bill  admits  the  suit  at  law  was  brought 
upon  that  agreement,)  before  they  elected  to  waive  it,  and 
then,  retaining  their  verdict  and  entering  judgment  at  law, 
apply  to  this  Court  to  set  the  contract  aside.  This  proceed- 
ing would  be  giving  the  plaintiffs  a  double  advantage,  and  is 
unreasonable  and  inadmissible. 

Any  decisive  act  of  the  party,  with  knowledge  of  his  rights 
and  of  the  fact,  determines  his  election  in  the  case  of  con- 
flicting and  inconsistent  remedies.  If  he  take  out  a  com- 
mission of  bankruptcy,  he  cannot  sue  the  bankrupt  at  law, 
for  that  would  be  again  superseding  the  commission.  (Ex 
parte  Ward,  1  Atk.  153.  EC  parte  Lewes,  1  Atk.  154.) 
So,  charging  a  party  in  an  execution  at  law  after  a  commis- 
sion issued,  is  an  election  to  take  the  remedy  at  law,  and  the 
party  must  abide  by  it.  (Ex  parte  Warder,  3  Bro.  191.  Ex 
parte  Cator,  3  Bro.  216.)  So,  again,  if  a  party  seeks  relief 
in  equity  by  bill  waiving  a  forfeiture  at  law,  though  he  fail  in 
obtaining  relief,  he  cannot  afterwards  insist  on  the  forfeiture 
at  law.  (1  Sch.  fy  Lef.  441.) 

There  cannot  be  any  doubt  of  the  principle,  that  equity 
will  not  relieve  a  party  fully  apprized  of  his  rights,  and  de- 
liberately confirming  a  former  act.  The  doctrine  has  been 

325 


42'2  CASES  IN  CHANCERY. 

1818        again  and   xgain  declared.     (3  P.  Wms.  294.  note  E.  &,c. 
v^^-^-^,   1  Atk.  344.     1  Ball  and  Beatty,  340.)     And  I  consider  the 
SHEPHARD     going  to  trial  in  the  action  at  law,  and  especially  the  entry 
MERRIL       °f  judgment  afterwards  upon  the  verdict,  as  a  decided  con- 
firmation of  the  settlement  in  April,  1816. 

I  shall,  accordingly,  dismiss  this  bill ;  but  from  the  opinion 
which  I  have  formed  upon  the  merits  of  the  transaction,  1 
am  not  willing  to  charge  the  plaintiffs  with  costs  ;  and  I  shall 
consequently,  dismiss  the  bill  without  costs. 

Order  accordingly. 


[*423]  *SHEPHARD  against  P.  AND  J.  MERRIL. 

After  publication  passed,  and  cause  set  down  for  hearing,  the  plaintiff 
will  not  be  allowed  to  amend  his  bill,  by  adding  new  charges ;  but 
may  file  a  supplemental  bill,  on  payment  of  the  costs  since  publication. 

August  21  PETITION  of  plaintiff,  stating  the  gravamen  intended  to 
be  set  forth  in  the  original  bill.  That  upon  the  hearing  the 
chancellor  denied  relief  to  the  plaintiff  upon  the  bill  as  framed, 
but  granted  a  rehearing.  That  the  mistake  in  the  agreement 
set  forth  in  the  bill  was  not  stated,  and  praying  for  leave  to 
amend  the  bill,  so  as  to  set  forth  the  mistake,  or  to  exhibit  a 
supplemental  bill  for  the  purpose. 

Gold,  for  the  plaintiff. 
Storrs,  contra. 

THE  CHANCELLOR.  It  is  a  settled  rule  of  practice,  that  a 
bill  defective  in  its  charges  cannot  be  amended  after  pub- 
lication, and  cause  set  down,  and  especially  after  hearing, 
by  adding  new  charges.  Such  defects  can  only  be  supplied 
by  a  supplemental  bill.  (Goodwin  v.  Goodwin,  3  Atk.  370. 
Jones  v.  Jones,  3  Atk.  111.  Vide, also,  3  Atk.  133.  Coop- 
er's Eq.  PL  73.  333,  334.  Newland's  Pr.  82.)  Leave  tc 
file  a  supplemental  bill  in  this  case  is  granted,  on  paying  tc 
the  defendants  their  costs  subsequent  to  the  rule  for  passing 
publication,  (a) 


326 


(a)  Vide  Beekman  v.  Waters,  ante,  p.  410 


CASES  IN  CHANCERY. 


'424 


1818. 


LANSING 

v. 
M'PHERSOH 


*LANSING  against  M'PHERSON  and  others. 

A.  decree  taken  pro  confesso  on  a  bill  for  a  foreclosure  of  a  mortgage, 
after  a  sale,  and  a  delay  of  more  than  six  months,  will  not  be  set  aside, 
unless  under  very  special  circumstances. 

But  the  sale  was  opened,  the  defendant,  who  was  bound  to  make  good 
any  deficiency  on  the  sale,  offering  50  per  cent,  more  than  was  bid, 
on  condition  of  his  depositing  that  advance  with  the  register,  in  eight 
days,  and  paying  the  expenses  of  the  former  sale. 

VAN  BUREN,  attorney-general,  for  the  defendant  M.,     August  31. 
moved  that  the  biddings  mentioned  in  the  petition  be  opened, 
and  the  premises  sold  again ;  the  defendant  offering  to  give 
50  per  cent,  more  than  was  bid  at  the  former  sale. 

The  petition  stated,  that  Win.  N.  Capon,  (defendant,) 
being  indebted  to  petitioner,  and  Samuel  M.  Lockwood,  (de- 
fendant,) in  1,890  dollars,  executed  a  bond  and  mortgage 
to  them ;  that  S.  M.  Lockwood  assigned  his  interest  therein 
to  the  petitioner,  M'Pherson;  that  the  bond  and  mortgage 
were  exchanged  by  the  petitioner  for  another  mortgage  to  the 
plaintiff,  and  were  duly  assigned  to  plaintiff;  that  the  plaintiff 
filed  a  bill  to  foreclose  the  mortgage,  and  the  petitioner  was 
made  a  party  defendant ;  that,  understanding  he  was  made  a 
party  for  form  only,  he  made  no  defence ;  that  the  mortgaged 
premises  were  sold,  and  purchased  by  the  plaintiff  for  240  dol- 
lars ;  that  he  understands  that  the  plaintiff  intends  to  apply  for 
a  decree  against  him  for  the  residue  of  the  mortgage  money  ; 
that  the  decree  of  sale  was  on  the  22d  of  January,  1817;  that 
the  master's  sale  has  not  been  confirmed,  and  no  report  thereof 
made,  or  deed  executed,  and  the  master  is  dead ;  that  the 
property  was  originally  purchased  by  the  petitioner  and 
Lockwood  for  700  dollars ;  that  Spencer  Stafford,  offered  to 
pay  the  debt,  on  two  years'  credit,  and  it  was  refused ;  lhat 
he  did  not  know,  until  lately,  that  the  plaintiff,  by  his  bill, 
*prayed  for  a  decree  against  him  for  the  deficiency  of  the  [  *  42? 
money,  if  any,  to  arise  from  the  sale  of  the  mortgaged  prem- 
ises ;  that  he  has  a  good  and  substantial  defence  on  the  merits, 
as  he  is  advised,  against  such  claim. 

Prayer,  that  the  order  for  taking  the  bill  pro  confesso  be 
vacated,  so  far  as  it  respects  the  claim  for  the  deficiency ;  and 
that  the  petitioner  be  admitted  to  his  defence,  and  that  the 
biddings  be  opened,  he  offering  to  give  50  per  cent,  advance 
on  what  was  bid. 

The  attorney-general  cited  Sugden's  Law  of  Vendors,  37, 
38 ;  and  1  Johns.  Ch.  Rep.  539. 

327 


425  CASES  IN  CHANCERY. 

1818.  Henry,  contra,  read  an  affidavit  of  the  plaintiff,  stating 

v^^-sx-^-x  that  the  mortgage  assigned  to  him  by  M'Phcrson  was  for 
LANSING  another  mortgage,  and  cash  paid  by  the  plaintiff  for  the  dif 
M'PHERSO  ference  ',  and  the  guaranty  of  M  Pherson  was  endorsed  on 
the  mortgage  assigned,  by  which  he  warranted  the  premises 
to  be  worth  1,311  dollars  45  cents,  and  engaged  to  be  re- 
sponsible for  the  deficiency,  if  any,  in  case  the  mortgage  was 
foreclosed ;  that  Stafford  had  it  in  his  power,  under  an  order 
of  this  Court,  in  November,  1815,  to  have  paid  the  debt ;  that 
the  mortgaged  premises  were  sold  by  a  master,  on  the  first 
of  May,  1817,  for  325  dollars,  and  bid  for  by  the  plaintiff; 
that  m"1  Pherson  is  in  embarrassed  circumstances,  and  the  re- 
covery of  the  difference  under  the  guaranty  will  be  endangered 
by  delay. 

THE  CHANCELLOR.  The  defendant  M' Pherson  applies 
for  two  things  ;  1 .  that  the  decree  taken  pro  confesso  against 
him  be  set  aside,  on  the  ground  of  misapprehension,  and  that 
he  has  a  good  and  substantial  defence  in  respect  to  the  claim 
against  him  for  any  deficiency  which  may  arise  on  the  sale 
of  the  mortgaged  premises ;  2.  that  the  sale  be  opened  upon 
the  terms  he  proposes. 

As  to  the  first  point,  the  delay  has  been  too  long  to  justify 
[  *  426  ]  *the  indulgence,  without  a  very  special  case  made.  There 
must  be  strong  ground,  as  Lord  Eldon  observed,  in  Knight 
v.  Young,  (2  f^esey  and  Bea.  184.)  for  opening  a  decree  of 
this  sort.  The  defendant  ought  to  have  stated  the  nature 
of  his  defence,  for  the  plaintiff  produces  his  very  engagement 
to  supply  the  deficiency  endorsed  upon  the  mortgage  when 
he  assigned  it.  This  part  of  the  motion  must  be  denied. 

But  I  think  the  sale  can  be  opened  without  any  inconve- 
nience or  injury  in  this  case ;  and  justice  would  seem  to  re- 
quire it,  especially  in  favor  of  a  defendant  who  offers  to  give 
50  per  cent,  in  advance  of  the  purchase  money,  and  who  is 
bound  to  supply  the  remainder  of  this  debt  unsatisfied  by  the 
sale.  The  plaintiff  was  here  the  purchaser,  and  the  sale  has 
not  been  confirmed,  nor  the  deed  executed. 

Sale  opened,  on  condition  that  the  defendant  M' Pherson 
deposit  with  the  register,  within  eight  days,  an  advance  of 
50  per  cent,  on  the  sum  of  325  dollars,  which  was  bid  by  the 
plaintiff,  and  on  his  paying  the  plaintiff  the  expense  he  in 
cur  red  of  the  former  sale. 

Decree  accordingly. 
328 


CASES  IN  CHANCERY. 


*427 


1818 


*CooK  AND  KANE  against  MANCIUS  AND  VISSCHER.          COOK 

MANCIUS 

\  plea  in  bar  naming  certain  judgment  creditors,  not  parties  to  the  bill, 
without  stating,  affirmatively,  that  they  ought  to  be  made  parties,  is 
good  ;  but  if  the  plea  simply  state  facts  from  which  it  may  be  inferred, 
that  other  parties  are  necessary,  without  naming  them,  or  averring 
that  they  are  necessary  parties,  it  is  informal  and  bad. 
A  plea  should  rest  the  defen  :e  on  a  single  point;  but  though  it  should 
be  multifarious,  yet,  if  it  d  scloses  facts  which  form  a  fatal  objection  to 
the  bill,  as  the  names  of  necessary  parties,  it  will  be  suffered  to  stand, 
with  liberty  to  the  plaintiff  to  amend  his  bill,  by  adding  the  parties,  on 
payment  of  the  costs  of  the  plea  and  subsequent  proceedings,  but  not 
of  the  useless  matter  in  the  plea. 

THE  bill  stated,  that  the  plaintiff  C.,  having  a  judgment,  September  **. 
in  trust  for  the  plaintiff  K.,  in  the  Supreme  Court,  against 
the  defendant  F.,  docketed  the  9th  of  July,  1817,  the  sheriff, 
on  an  execution  issued  on  that  judgment,  and  other  execu- 
tions on  prior  judgments,  (but  which  had  since  been  paid,) 
against  V.,  sold,  on  the  24th  of  July,  1818,  the  right  of  y. 
to  a  piece  of  land  in  IVatervliet,of  140  acres,  of  which  V. 
was  seised,  subject  to  a  mortgage,  to  the  defendant  V.,  for 
10  dollars  ;  that  the  defendant  M.  was  present  at  the  sale, 
and  declared  himself  the  owner,  thereby  preventing  other 
persons  from  bidding.  That,  on  the  22d  of  May,  1810, 
before  the  purchase  of  the  premises  by  V.,  Garret  G.  Van 
Zandt,  being  seised  thereof,  executed  a  mortgage  of  the 
same  to  Henry  Ostrom,  to  secure  2,785  dollars,  which  .mort- 
gage was  foreclosed  in  this  Court,  and  a  decree  for  a  sale 
made  the  25th  of  May  last.  That,  after  the  9th  of  July, 
1817,  and  before  the  sale,  on  the  24th  of  July  last,  the  de- 
fendant V.,  in  order  to  defraud  the  plaintiff  K.  of  the  amount 
of  the  said  judgment  in  favor  of  the  plaintiff  C.,  sold  the  ' 
premises  to  the  defendant  M.,  without  consideration ;  and 
by  deceitful  representations  to  the  solicitor  and  counsel  of 
O.,  procured  the  decree  for  the  sale  of  the  premises,  which 
directed,  that,  on  *the  sale,  the  surplus,  after  satisfying  the  [  *  428  1 
mortgage  debt,  should  be  paid,  over  to  the  defendant  V.  That 
the  premises  were  sold  by  a  master,  on  the  25th  of  July  last, 
under  the  decree,  to  the  defendant  M.,for  2,000  dollars,  and 
the  sum  of  1,080  dollars  was  the  balance,  including  costs 
due  on  the  mortgage.  That  the  defendant  M.  had  notice 
of  the  judgment  against  V.,  and  that  the  same  was  unsat- 
isfied ;  and  on  the  day  of  sale,  the  plaintiff  C.  offered  to  pay 
to  the  master  the  amount  due  on  the  mortgage,  which  was 
Defused.  That  the  defendant  M.  did  not  pay  the  master  the 

VOL.  TIL  42  329 


126  CASES  IN  CHANCERY. 

1818.       2,000  dollars  bid  by  him,  but  only  1,080  dollars  due  on  the 
^r^s-^-s  mortgage,  with  costs ;  and  that  M.  acted  as  the  agent  of  V^ 

COOK  and  to  defeat  the  demand  of  the  plaintiff  against  V.,  pur- 
MANCIUJ  chased  the  land,  under  an  agreement  with  V.,  that  the  residue 
of  the  2,000  dollars,  after  deducting  the  mortgage,  should  be 
deducted  from  the  consideration  agreed  to  be  paid  for  the 
premises,  in  case  he  should  be  obliged  to  pay  that  residue  to 
the  plaintiff;  and  that  the  defendant  V.  never  has  received 
from  M.  the  residue  of  the  purchase  money.  Prayer,  that 
the  defendants  may  pay  into  Court  the  920  dollars,  being  the 
surplus  of  the  purchase  money,  after  deducting  the  1,080 
dollars  due  to  £)«£rom,  or,  on  their  refusal  to  do  so,  that  they 
may  be  decreed  to  convey  to  the  plaintiff  C.  the  mortgaged 
premises,  and  pay  the  costs,  &c. 

The  defendants  put  in  separate  pleas  in  bar,  stating,  that 
before  the  bill  of  the  plaintiffs  was  filed,  to  wit,  on  the  25th 
of  May,  1818,  in  the  suit  of  //.  Osfrow  v.  CremV  G.  Van 
Zandt  and  Wife,  Lyman  Standford,  and  the  defendant  V.,  a 
decree  was  enter'ed  for  the  sale  of  the  mortgaged  premises 
by  a  master,  on  six  weeks'  notice,  and  that  out  of  the  pro- 
ceeds the  master  pay  the  mortgage  debt  and  costs ;  and 
"  that  the  residue  of  the  moneys,  if  any,  be  paid  to  the  de- 
fendant V. ; "  that,  in  pursuance  of  this  decree,  the  master 
sold  the  premises  on  the  21st  of  July,  1818,  at  auction,  to 
[  *  429  ]  the  defendant  M.,  for  2,000  dollars ;  *and  on  the  22d  of 
July,  executed  a  deed,  and  reported  to  this  Court  the  pro- 
ceeding and  sale,  and  that  the  amount  of  the  debt  and  costs 
on  the  mortgage  had  been  received  from  the  purchaser  to 
1,080  dollars,  and  paid  to  the  plaintiff  in  that  suit,  and  that 
the  residue  of  the  purchase  moneys  had  been  paid  over  by 
him  to  the  defendant  V.  That  in  May  term,  1817,  C.  D. 
Cooper  recovered  a  judgment  in  the  Supreme  Court  against 
the  defendant  F".,  for  138  dollars  51  cents;  that  in  January 
term,  1816,  the  corporation  of  the  city  of  Albany  recovered 
a  judgment  against  V.  for  662  dollars  26  cents,  docketed 
the  2d  of  November,  1816. 

That  in  May  term,  1817,  the  said  corporation  recovered  a 
judgment  against  V.  for  233  dollars  and  27  cents  ;  and  that 
John  B.  Visscher  recovered  a  judgment  against  the  defend- 
ant V.  for  305  dollars  and  60  cents,  docketed  10th  of  May, 
1817.  And  the  defendants  pleaded  and  averred,  that  the 
said  judgments  are  in  force,  and  wholly  due  and  unpaid,  and 
pleaded  the  same  in  bar.  The  pleas  were  sworn  to. 
The  question  arose  on  the  validity  of  these  pleas 

fV.  Hale,  for  plaintiffs. 
330 


CASES  IN  CHANCERY.  429 

J.  V.  N.  Yates,  for  the  defendants.  ISIS 

THE  CHANCELLOR.     The  substance  of  the  plea  is,  tha          COOK 

the  bill  does  not  contain  proper  parties,  and  it  discloses  facts 
...  .  .r  ,  r       r  ,:  .  1-1  MANCIUS. 

snowing  that  there  are  judgment  creditors  interested  in  the 

surplus  moneys,  and  who  have  a  prior  claim  to  that  of  the 
plaintiffs.  The  plea  only  states  the  facts  from  which  we  are 
to  infer  that  further  parties  are  necessary,  and  then,  instead 
of  saying  affirmatively,  that  additional  parties  are  necessary, 
the  defendants  say  they  are  not  bound  farther  to  answer,  and 
plead  those  facts  in  bar.  Such  a  plea  was  held  to  be  in- 
formal, and  leave  was  given  to  amend  it,  in  Merreivether  v. 
Mcllish.  (13  ^"es.  435.)  *But  in  that  case  the  parties  were  [  *  430 
not  named  at  all.  Here  the  prior  judgment  creditors  are 
named,  and  the  objection  would  seem,  then,  to  be  confined 
to  the  mere  want  of  form  in  not  stating,  in  so  many  words, 
that  those  judgment  creditors  are  necessary  parties.  This  I 
do  not  think  material,  and  that  branch  of  the  plea  is,  there- 
fore, good.  But  the  preceding  part  of  the  plea  sets  forth 
the  decretal  order  for  the  sale  of  the  mortgaged  premises, 
and  the  proceedings  by  the  master.  This  is  distinct  matter, 
and  contrary  to  the  rule  of  pleading,  which  will  not  allow 
multifarious  matter  in  one  plea,  but  requires  that  the  defence 
in  a  plea  should  rest  on  a  single  point.  If  the  object  of  this 
was  to  show  that  Ottrom,  the  plaintiff  in  the  suit  upon  the 
mortgage,  ought  also  to  have  been  a  party,  there  was  no 
necessity  for  stating  all  the  proceedings  by  the  master.  The 
fact  might  have  been  briefly  stated,  without  encumbering  the 
plea  with  such  a  detail  of  matter,  and  which  must  have  been 
inserted  for  other  purposes  than  merely  to  show  that  Ostrom 
ought  also  to  have  been  a  party.  Nor  was  it  necessary  that 
Ostrom  should  have  been  a  party  to  this  suit,  for  he  cannot 
be  affected  in  interest,  since  the  object  of  the  suit  is  only  to 
procure  the  surplus  moneys  arising  upon  the  sale,  and  with 
which  Ostrom  can  have  no  concern.  He  is  not  charged  with 
any  act  whatever  that  is  put  forward  as  a  ground  for  relief. 

But  though  the  plea  be  censurable  for  the  multifariousness 
of  its  matter,  it  nevertheless  discloses  a  fatal  objection  to  the 
bill,  as  it  now  stands,  and  I  am  not  inclined  to  overrule  it 
altogether.  The  judgment  creditors  mentioned  in  the  plea 
must  be  made  parties ;  for  their  claim  to  the  surplus  may  be 
better  than  that  of  the  plaintiffs,  and  the  plaintiffs  cannot 
obtain  a  decree  for  it,  until  they  are  heard.  I  shall,  there- 
fore, let  the  cause  stand  over,  with  liberty  to  the  plaintiffs  to 
amend  their  bill  by  making  those  creditors  parties ;  and  it 
must  be  upon  the  payment  of  the  costs  of  the  pleas  and  the 
subsequent  proceedings ;  but  in  *taxing  the  costs,  the  de-  [  *  431  ] 

331 


131  CASES  IN  CHANCERY. 

1818.  fendants  are  not  to  be  allowed  for  any  part  of  those  pleas 
^^~^s~^/  that  relate  to  the  proceedings  in  chancery,  or  the  proceedings 
BRADFORD  by  and  before  the  master.  The  defendants  are  to  be  entitled 
to  tne  usua^  ^me  to  answer  the  bill  when  amended. 

Order  accordingly. 


BRADFORD  against  KIMBERLY  AND  BRACE. 

One  joint  partner  is  not  entitled,  as  against  the  others,  to  a  compensation 
for  his  greater  or  more  valuable  services,  in  regard  to  the  common  con- 
cern, unless  there  be  a  special  agreement  to  that  effect. 

But,  where  the  several  joint  owners  of  a  cargo  appoint  one  of  the  part 
owners  their  agent,  to  receive  and  sell  the  cargo,  and  distribute  the 
proceeds,  he  is  entitled,  under  such  special  agency,  to  a  commission, 
or  compensation,  for  his  services,  as  a  factor,  or  agent,  in  the  same 
manner  as  a  stranger  ;  and  as  such  factor,  or  agent,  he  may  retain  the 
goods,  or  their  proceeds,  as  security,  not  only  for  his  advances,  dis- 
bursements, or  responsibilities,  in  regard  to  the  particular  property, 
but  for  the  balance  of  his  general  account. 

June  18  and  IN  August,  1813,  the  defendants,  Adijah  Weston,  Benjamin 
9,andSep<.28.  jj</em'^  anc[  others,  were  joint  owners  of  a  vessel  and  cargo 
fitted  out  from  New-Haven,  Connecticut,  to  Porto  Rico,  where 
the  cargo  was  sold,  and  the  proceeds  invested  in  a  cargo  of 
coffee,  &c.,  shipped  on  board  the  brig  Edwardo,  consigned 
to  P.  Harmony,  of  Newport,  where  it  arrived.  P.  Jleston 
owned  three-eights  of  the  return  cargo,  and  previous  to  its 
arrival  at  Newport,  sold  and  assigned  his  interest  to  Ralph 
Bulkley,  who,  after  the  arrival  of  the  cargo,  to  wit,  on  the 
21s't  of  March,  1814,  assigned  the  three-eights  thereof,  so 
purchased  by  him  of  II .,  to  the  plaintiff,  to  whom  he  was 
largely  indebted,  as  a  security  for  the  debt,  and  in  trust  to 
pay  John  Clapp  1,500  dollars,  and  to  pay  the  defendants 
1,220  dollars,  and  the  residue  to  the  plaintiff.  The  defend- 

*432]  ants  paid  to  the  plaintiff  *  1,450  dollars,  which  he  paid  over 
to  Clapp.  On  the  22d  of  March,  1814,  the  said  return  cargo 
came  into  the  possession  of  the  defendants,  who,  on  the  25th 
of  March,  1814,  received  notice  of  the  assignment  of  Weston's 
share,  by  R.  Bulkley,  to  the  plaintiff,  but  refused  to  deliver  it. 
The  share  of  W.,  so  assigned  to  Bulkley,  and  by  him  to  the 
pliintiff,  amounted  to  5,800  dollars.  The  accounts  between 
the  defendants  and  the  other  owners,  were  adjusted,  and 
paid  by  the  defendants,  who  have  in  hand  3,00 J  dollars 
332 


CASES  IN  CHANCERY.  433 

of  the  proceeds  of  W.'s  share,  which  the  plaintiff  claimed        1818. 
under  the  assignment  to  him.     The  bill  prayed  that  the  de-  %^--s/— ^_x 
fendants  might  account  for  the  property  so  received  by  them,     BRADFORD 
and  assigned  to  the  plaintiff,  and  may  be  decreed  to  pay  over     KIMBERLT 
the  balance  to  him,  &,c. 

The  answers  of  the  defendants  admitted  the  joint  shipment 
and  joint  concern  in  the  return  cargo  of  the  Edwardo,  and  that 
W.:s  share  was  600  parts  of  1,634,  and  was  so  finally  ad- 
justed. That  the  cargo  was  consigned  to  S.,  the  master  of 
the  brig,  who,  on  his  arrival,  placed  it  in  the  hands  of  Har- 
mony. That  the  cargo  arrived  at  Newport,  in  December,  1813, 
and  the  owners,  in  January,  1814,  agreed  to  make  the  de- 
fendants their  factors,  agents,  or  commission  merchants,  for 
the  disposal  thereof,  in  New-  York ;  and  S.  and  H.  were  di- 
rected to  deliver  the  same  to  the  defendants  accordingly. 
That  a  greater  part  of  the  cargo  came  into  the  hands  of  the 
defendants,  on  the  19th  of  March,  1814,  not  on  the  22d  of 
March,  as  the  plaintiff  had  alleged  ;  and  another  part  came 
to  New-  York,  to  the  defendants,  the  9th  of  May  following. 
That,  on  the  25th  of  March,  1814,  notice  was  received  by 
the  defendants  of  the  assignment  by  BulJdey  to  the  plaintiff. 
That  the  net  amount  of  the  share  so  assigned  is  3,946  dol- 
lars and  60  cents.  That,  previous  to  any  knowledge  of  the 
assignment,  Bulkley  was  indebted  to  the  defendants  ;  and  after 
the  cargo  was  received  by  them,  they  lent  him  their  notes, 
which  they  afterwards  paid,  &c. ;  that,  on  the  29th  of  *March,  [  *  433  j 
1816,  they  paid  to  the  plaintiff  1,736  dollars  and  55  cents. 
That  R.  Bulkley  is  indebted  to  the  defendants,  for  a  balance 
of  accounts,  in  the  sum  of  2,000  dollars ;  and  that  he  failed 
on  the  21st  of  March,  1814,  and  became  insolvent,  which 
was  known  to  the  plaintiff  before  the  assignment  to  him. 
The  defendants  insisted,  that  their  advances  and  responsibil- 
ities for  Bulkley  having  been  made  after  the  cargo  came  into 
their  hands,  they  had  a  lien  on  the  proceeds,  for  their  secu- 
rity, for  the  balance  due  them  from  B.,  and  which  could  not 
be  defeated  or  impaired  by  the  assignment  to  the  plaintiff. 

Several  witnesses  were  examined  in  the  cause,  which  came 
on  to  be  heard  in  June  last. 

Wells,  for  the  plaintiff.     He  cited  7  East,  229.     9  East,  /wn«i8andfi 
426.     3  Bos.  fy  Pull.  494.  126.     Abbott  on  Ships,  96.     1 
Vesey,  497.      Watson  on  Partn.  139.      Weston  v.  Barker,  12 
Johns.  Rep.  276. 

Boyd,  for   the  defendants.     He  cited    Comyn's  Dig.  tit. 
Fa -tor.     Coivp.  Rep.  251.     2  East,  227.     1  Burr.  489. 

333 


433  CASES  IN  CHANCERY. 

1818.  ^ie  cause  stood  over  for  consideration  until  this  day. 

BRADFORD  TiJE  CHANCELLOR.  It  appears  in  proof  that  the  owners 
KIMBERLY  °^  ^e  carS°  °f  tne  Edwardo,  in  January,  1S14,  appointed 
September  28.  tne  defendants  their  agents  to  receive  and  sell  the  cargo,  and 
distribute  tho  proceeds.  The  defendants  were  at  the  same 
time  part  owners ;  but  this  special  agency  was  altogether 
distinct  from  their  ordinary  powers  as  part  owners,  and  they 
were  to  be  considered,  for  this  purpose,  as  agents  for  the  com- 
pany ;  and  in  that  character  they  were  entitled  to  their  com- 
missions or  compensation,  in  the  same  manner  as  any  other 
persons,  being  strangers  in  interest,  would  have  been  entitled 
under  such  an  agency.  In  the  case  of  joint  partners,  thegen- 
[  *  434  ]  eral  rule  is,  that  one  is  not  entitled  *to  charge  against  another 
a  compensation  for  his  more  valuable  or  unequal  services  be- 
stowed on  the  common  concern,  without  a  special  agreement ; 
for  it  is  deemed  a  case  of  voluntary  management.  This  is  the 
doctrine  in  the  cases  on  this  point.  (Thornton  v.  Proctor,  \ 
Anst.94.  Burden  v.  liurdtn,  1  f^esey  andBca.  170.  Frank 
lin  v.  Robinson,  1  Johns.  Cli.  Hep.  157.)  But  where  the  sev 
eral  owners  meet,  and  constitute  one  of  the  concern  an  agent, 
to  do  the  whole  business,  a  compensation  is,  necessarily  and 
equitably,  implied  in  such  special  agreement,  and  they  are  to  be 
considered  as  dealing  with  a  stranger.  The  defendants  are, 
consequently,  to  be  viewed  as  commission  merchants  to  receive 
and  sell  the  return  cargo,  and  they  are  entitled  to  the  rights 
belonging  to  that  character. 

If  this  conclusion  be  correct,  there  is  then  no  doubt  that 
the  claim  on  the  part  of  the  defendants  must  be  admitted. 
It  is  well  settled,  that  a  factor  may  retain  the  goods  or  the 
proceeds  of  them,  not  only  for  the  charges  incident  to  that 
particular  cargo,  but  for  the  balance  of  his  general  account ; 
and  this  allowance  is  made  not  only  while  the  goods  remain  in 
specie,  but  after  they  are  converted  into  money.  This  was 
the  doctrine  declared  in  Kruger  v.  Wilcox,  (Arab.  252.)  and 
afterwards,  by  Lord  Mansfield,  in  Godin  v.  London  Assurance 
Company,  (I  Burr.  494.)  and  by  Mr.  J.  Buller,  in  Lickbar- 
row  v.  Mason,  (6  East,  23.  in  notis.')  And  it  is  further  set- 
tled, that  this  lien  applies  not  only  for  the  amount  of  the 
money  actually  disbursed  for  the  necessary  use  of  the  prop- 
erty in  hand,  and  for  acceptances  actually  paid,  but  for  the 
amount  of  outstanding  acceptances  not  then  due.  The 
factor  may  retain  the  goods,  or  the  money  into  which  they 
have  been  converted,  until  he  is  indemnified  against  the  lia- 
bility to  which  he  had  subjected  himself.  (Hammonds  v. 
Barclay,  2  East,  227.  Drinkivater  v.  Goodwin,  Cowp.  251.) 
This  is  very  equitable  doctrine,  especially  when  the  accept- 
334 


CASES  IN  CHANCERY.  *435 

ances  and  responsibilites  *were  assumed,  or  necessarily  prc-        1818. 
sumed  to  have  been  assumed,  upon  the  credit  of  the  prop    x^^-s/-^^ 
erty  in  his  possession.  BRADFORD 

In  this  case,  the  accounts  annexed  to  the  answers  are 
admitted  to  be  correct ;  and  it  appears  by  them  that  at  the 
date  of  the  assignment  from  Bufkley  to  the  plaintiff,  he  was 
indebted  to  the  defendants  for  moneys  advanced,  or  respon- 
sibilities assumed,  and  afterwards  discharged  by  the  defend- 
ants, to  more  than  his  share  of  the  net  proceeds  of  the 
goods  committed  to  the  disposal  of  the  defendants,  after 
crediting  the  plaintiff  with  what  he  has  since  received  under 
that  assignment.  There  was  nothing  due  to  the  plaintiff 
when  he  filed  his  bill.  It  will  be  readily  admitted,  that  the 
plaintiff  took  no  other  or  greater  right  under  his  assignment, 
than  what  Bulkley  possessed  when  he  made  it.  It  was  made 
subject  to  all  existing  equities. 

Bill  dismissed,  with  costs. 

335 


5  CASES  IN  CHANCERY. 

1818. 

M'MENOMY,   Survivor    of   TowNSEND,   Assignee   of 

MURRAY.  MARK    AND    SPEYER,    Bankrupts,    against   MuRRAJ 

and  others. 

[See  4  Paige  34.1 

M.  Sf  S.,  partners  in  trade,  being  greatly  indebted  in  the  United  States 
and  in  Europe,  on  the  2d  of  December,  1799,  conveyed  certain  lands  t( 
B.,  in  trust,  for  the  security  and  payment  of  certain  European  or  Ger- 
man creditors,  until  they  were  paid,  or  5.  should  be  absolutely  exoner- 
ated and  discharged  therefrom,  by  the  said  creditors,  and  their  de- 
mands transferred  to  M.  alone,  or  "iS.  be  otherwise  exonerated,  acquit- 
ted or  discharged  therefrom  ;  and  after  the  said  debts  should  be  satis- 
fied, or  the  said  S.  be  so  discharged  and  released,  then  in  trust  for  M. 
M.  $f  S.,  having  committed  an  act  of  bankruptcy,  in  July,  1800,  were 
duly  discharged  from  their  debts  under  the  late  bankrupt  law  of  the 
United  States,  passed  April  4th,  1800.  Held,  that  this  was  a  valid  deed, 
and  that  the  discharge  of  S.  from  the  partnership  debts,  under  the 
bankrupt  law,  was  not  a  fulfilment  of  the  condition  on  which  the  trust 
for  the  German  creditors  was  created. 

A  discharge  under  a  bankrupt  law  of  this  country,  does  not  discharge  the 
debtor  from  debts  contracted  and  made  payable  in  Europe,  or  a  for- 
eign country  unless  the  foreign  creditors  come  in,  and  prove  their 
debts  under  tne  commission.  But  even  if  the  discharge  under  the 
f  *  436  ]  bankrupt  law  should  *be  deemed  a  discharge  from  any  suit  in  the 

United  States  for  debts  due  to  the  German  creditors  of  S.,  yet  that 
would  not  satisfy  the  terms  and  conditions  of  the  deed  of  trust,  unless 
it,  also,  operated  as  a  discharge  in  Germany,  where  the  debts  were 
contracted. 

The  late  bankrupt  law  did  not  operate  upon  acts,  declared  to  be  acts  of 
bankruptcy,  committed  prior  to  the  1st  of  June,  1800. 

toy,  9,  11,  JACOB  MARK,  and  John  Speyer,  (defendants,)  in  1793 
a  ^  '  entered  into  copartnership  in  the  city  of  New-York.  In 
1794,  S.  went  to  Europe,  on  business,  and,  while  there,  bor- 
rowed of  Engels,  of  Berlin,  10,400  dollars,  for  which  he  gave 
a  partnership  note,  payable  with  interest,  at  8  per  cent., 
which  the  bill  charged  to  be  usurious.  About  the  1st  of 
February,  1796,  he  entered  into  a  contract  with  three  Ger- 
mans, Count  de  Rottenham,  Baron  de  Wtckman,  and  F.  Mark, 
for  the  sale  of  100,000  acres  of  land  of  M.  fy  S.,  on  a  loan 
by  them  of  40,000  dollars  to  M.  fy  S.,  for  which  he  gave  an 
obligation,  binding  M.  fy  S.  to  pay  that  sum,  with  interest, 
at  5  per  cent.,  on  the  loan,  and  a  commission  of  2  per 
cent.,  the  particulars  of  which  contract  were  stated  in  the 
pleadings.  S.  returned  to  New-York  in  1796  ;  and  the  bill 
stated,  that  M.  fy  S.,  being  indebted  above  230,000  dollars, 
were  declared  bankrupts,  in  July,  1800,  and  their  estate 
assigned  to  the  plaintnfs,  in  September  following ;  that  they, 
in  contemplation  of  such  bankruptcy,  and  with  intent  to 
defeat  and  delay  their  creditors,  executed  a  deed  to  John 
336 


CASES  IN  CHANCERY.  436 

Murray,  defendant,  dated  2d  of  December,  1 799,  which  stated,  1818. 
that  M.  fy  S.  had  dissolved  their  partnership  on  the  5th  of  ^^^^^^^ 
August,  1799,  and  that  M.  had  agreed  to  pay  the  partnership  M'MENOMT 
debts,  and  that  &  was  to  be  exonerated  from  the  German  MURRAY. 
debts,  which  were  specified :  the  deed  further  recited  the 
loan  of  40,000  dollars,  of  the  three  Germans  above  named, 
and  the  terms  of  it,  and  the  security  they  were  to  have  for 
the  loan,  in  lands ;  and  to  indemnify  S.  from  those  debts,  and 
to  secure  the  German  creditors,  if  they  would  discharge  S., 
or  accept  payment  in  land,  at  two  dollars  per  acre,  M.,  in 
whom  the  *legal  title  to  the  lands  was  vested,  and  S.,  con-  [  *  437  ] 
veyed  to  Murray,  in  fee,  fourteen  undivided  fifteenth  parts 
of  township  No.  5,  in  the  old  military  towns,  on  the  west 
side  of  Lake  Champlain,  containing  about  64,000  acres, 
(subject  to  a  mortgage  to  J.  &/•  R.  Leroy,  to  secure  1,600 
dollars,  and  all  other  specific  liens,)  in  trust,  for  the  said 
German  creditors,  and  on  condition  that  those  creditors 
should  elect  to  discharge  S.,  and  look  solely  to  M.}  or  to 
receive  payment  in  said  lands,  at  two  dollars  per  acre,  and 
should  give  the  trustee  notice  of  such  election,  on  or  before 
the  1st  of  January,  1801.  The  trustee  was  to  hold  the  land, 
until  S.  should  be  exonerated,  and  for  his  indemnity,  and 
was  authorized  to  sell  the  lands  at  auction,  or  private  sale, 
but  not  under  two  dollars  per  acre,  without  the  consent  of 
M.  fy  S.  The  trustee  was,  also,  authorized  to  lease  the  lands ; 
and  after  the  said  debts  should  be  satisfied,  or  S.  discharged, 
he  was  to  hold  them  in  trust  for  M.  in  fee.  The  trustee  was 
also  authorized  to  raise  money  by  mortgage,  to  make  par- 
tition, and  to  vest  the  proceeds  of  the  land  in  stock  of  the 
United  States,  and  with  power  to  appoint  M.,  and  his  as- 
signs, as  agent  to  sell  or  lease  the  lands.  That  in  case  the 
trustee  died,  his  son  John  R.  Murray  was  to  be  trustee  with 
like  powers ;  if  not,  then  the  trustee  might  appoint  a  trustee 
by  deed,  to  be  agreed  on  by  him  and  M.t  and  the  creditors ; 
and  the  trustee  was  to  convey  the  lands  to  the  new  trustee 
so  appointed ;  and  M.  was  to  free  the  lands  from  all  encum- 
brances, and  pay  the  taxes ;  and  on  the  further  condition, 
that  if  the  debts,  or  any  part  of  them,  should  be  paid  by  M., 
or  if  S.  should  be  discharged  from  his  debts,  the  deed  should 
be  void. 

The  bill  further  stated,  that  S.,  about  the  1st  of  June, 
1800,  in  contemplation  of  bankruptcy,  or  of  a  discharge 
under  the  insolvent  act,  conveyed  to  the  defendant  Murray 
one  or  more  lots  in  the  city  of  New-  York,  without  any  con- 
sideration. That  the  deeds  were  delivered  to  the  defendant 
Murray  long  after  the  time  they  bear  date  ;  and  *the  first-  [  *  438  | 
mentioned  deed  had  not  been  recorded  as  a  mortgage  in  the 

VOL.  III.  43  337 


438  CASES  IN  CHANCERY 

1818.  county  where  the  lands  weie  situated,  at  least  before  the 
commission  of  bankruptcy,  on  the  1st  of  April,  1800,  when 
a  judgment  was  docketed  against  M.  &/•  S.,  at  the  suit  of 
MIRRAY.  *ne  plaintiffs  and  others,  for  100,000  dollars,  in  trust  for  the 
creditors  of  M.  fy  S.,  who  have  proved  their  debts  under  a 
commission  of  bankruptcy.  That  none  of  the  German  cred- 
itors had  elected  to  discharge  S.,  and  look  solely  to  M.,  or  to 
receive  payment  in  lands,  at  two  dollars  per  acre,  nor  given 
notice  of  such  election  to  the  defendant  Murray,  before  M 
fy  S.  were  discharged  under  the  bankrupt  act  in  October, 
1800,  or  before  the  1st  of  January,  1801,  whereby  the  con- 
dition on  which  the  security  was  provided  for  their  German 
creditors  was  not  complied  with,  and  the  deed  became  void. 
The  bill  charged,  that  if  this  deed  was  otherwise  valid,  it 
was  fraudulent  as  against  the  general  creditors  of  M.  fy  S.  ; 
and  prayed,  that  the  defendant  Murray  might  render  an 
account  of  receipts  and  expenditures,  under  the  deeds,  &c., 
and  deliver  up  the  same  to  be  cancelled,  or  be  decreed  to 
release  the  said  lands  and  lots  to  the  plaintiffs,  and  come  to 
an  account  of  all  moneys  received  thereon,  &c.  &c. 

The  defendants  Murray,  Mark,  and  Speyer,  in  their  joint 
and  several  answers,  set  forth  all  the  particulars  of  the 
transactions,  &c.  referred  to  in  the  bill. 

It  was  agreed  by  the  counsel  of  the  parties,  that  an  ac- 
count should  be  taken  of  the  debts  due  to  the  German  cred- 
itors as  stated  in  the  answer,  if  they  were  entitled  under  the 
trust  deed  to  be  paid  their  debts.  That  suits  were  pending 
against  M.  &f  S.  between  January  and  April,  1800,  and 
that  in  March,  1800,  verdicts  were  taken  against  them,  and 
judgments  entered  thereon  at  the  ensuing  term  of  the  Su- 
preme Court.  That  the  trust  deed  was  prepared  in  Decem- 
ber, 1799,  by  direction  of  Marks,  and  was  duly  executed  and 
[  *  439  ]  delivered  the  24th  of  January,  *1800  ;  that  M.  fy  S.  com- 
mitted an  act  of  bankruptcy  the  llth  of  July,  1800. 

June  9,  10,  N.  Pendleton,  for  the  plaintiff.  He  cited  M'Menomy  and 
Townsend,  assignees  of  Mark  and  Speyer,  v.  Ferrers,  (3  Johns. 
Rep.  71.)  Herman  v.  Fisher,  (Cowp.  117.)  Anderson  ana 
others  v.  Temple,  (4  Burr.  2235.)  Hyslop  and  another  v 
Clarice  and  others,  (14  Johns.  Rep.  458.) 

S.  Jones,  jun.,  and  E.  H.  Pendleton,  for  the  defendant. 
September  SB.       The  cause  stood  over  for  consideration  until  this  day. 

THE  CHANCELLOR.  The  great  object  of  the  bill  is  to  set 
aside  the  deed  of  trust  of  the  2d  of  December,  1799,  from 
338 


CASES  IN  CHANCERY.  43s, 

Mark  and  Speyer  to  John  Murray,  and  the  deed  of  the  21st        1818. 
&t  April,  1800,  from  Speyer  to  Murray.  ^-X-N^-*^ 

1.  The  trust  deed  was  made  to  secure  the  German  credit-     M'MENOM? 
ors,  several  of  whom  made  a  loan  to  Mark  and  Speyer,  upon      MURRAY 
the  condition  that  they  should  be  secured  by  lands  in  the 
United  States. 

One  of  the  objections  to  this  deed  is,  that  it  was  made 
upon  a  condition,  which  has  since  been  fulfilled,  which  was 
the  discharge  of  Speyer  from  the  partnership  debts.  This 
condition  is  repeatedly  expressed  in  the  deed.  The  lands 
mentioned  in  it  were  conveyed  in  trust,  for  the  security  and 
payment  of  European  creditors,  until  the  debts  were  paid,  or 
Speyer  should  be  "  otherwise  exonerated,  acquitted,  and  dis- 
charged therefrom."  The  manner  in  which  Speyer  was  to 
be  discharged  is  afterwards  mentioned.  It  was  to  be  done 
by  the  act  of  the  creditors,  transferring  their  demands  from 
the  house  of  Mark  and  Speyer  to  Mark  alone,  so  as  thereby 
to  exonerate  Speyer.  It  is,  again  and  again,  declared  and 
repeated,  that  the  German  creditors  were  to  exonerate  S., 
"  so  as  the  said  creditors  could  not  thereafter  claim,  challenge, 
or  recover  the  debt,  or  any  part  of  it,  from  him ; "  or  so 
that  he  *"  be  thereof  and  from  the  responsibility  to  pay,  fully  [  *  440  ] 
acquitted,  exonerated,  and  released."  In  a  subsequent  place 
in  the  deed,  it  is  once  more  mentioned,  that  when  the  Eu- 
ropean debts  were  all  discharged  and  paid,  or  when  Speyer 
"should  be  wholly  and  absolutely  exonerated,  acquitted,  and 
perpetually  exempted  of  and  from  all  and  singular  the  said 
debts,  dues,  and  demands,  and  of  and  from  all  manner  of 
liability  for  the  payment  thereof,  by  any  of  the  means  aforesaid, 
or  by  good  and  sufficient  transfers  by  the  said  creditors  of 
such  their  said  debts  to  Mark,  so  as  to  acquit  Speyer"  then 
the  trust  estate  was  to  cease. 

There  can  be  no  doubt  in  the  mind  of  any  person  who 
will  carefully  peruse  the  deed  of  trust,  that  the  discharge  of 
Speyer  was  to  come  from  the  German  creditors,  and  to  be 
a  personal  act  of  theirs  ;  and  no  other  means  of  discharge  were 
within  the  purview  of  the  deed.  No  such  discharge  is  pre- 
tended, and,  therefore,  the  deed  remains  in  force.  But  it  has 
been  urged,  that  the  discharge  of  Mark  and  Speyer  in  Octo- 
ber, 1800,  under  the  bankrupt  act  of  the  United  States,  was 
a  discharge  from  the  German  debts,  within  the  condition  of 
the  deed.  It  is  a  decisive  answer  to  this  objection,  that  the 
parties  did  not  mean  such  a  discharge,  and  that  the  deed 
must  have  operation  according  to  the  manifest  intent.  Nor 
did  the  discharge  of  Speyer,  under  the  bankrupt  act,  fully 
and  perpetually  exempt  him  from  the  German  debts.  These 
debts  were  contracted  in  Germany,  and  payable  in  Ger- 

339 


440  CASES  IN  CHANCERY.. 

1818.       "many,  and  the  discharge  of  Speyer  by  the  bankrupt  law  of 
s^-s^-^x  this  country  will  not  discharge  him  from  those    debts,  un 
M'MENOMT     less  those  foreign  creditors  have  assented  to  that  proceeding, 
MURRAY       ^  coming  in  and  proving  their  debts  under  the  commission. 
I  am  aware  that  the  opinion  has  respectable  sanction ;  that 
"  a  cessio  bonorum }  under  the  laws  of  a  state  where  the  debtor 
has  his  permanent  domicil,  ought  to  operate  as  a  discharge 
from  his  creditors  in  every  part  of  the  world."     But  such  a 
f  *  441  ]       general  rule  as  this  is  not  the  law  of  the  *land,  nor  do  I  be- 
lieve it  to  be  any  part  of  the /MS  gentium.     There  are  several 
distinctions  taken  on  this  subject,  and  which  I  need  not  now 
examine.     It  is  sufficient  to  say,  that  a  contract  made  in  a 
foreign  country,  and  to  be  governed  and  discharged  by  its 
laws,  cannot  be  "  absolutely  "  discharged  by  the  statute  of 
another  country,  to  which  the  parties  have  not  bound  them- 
selves to  submit.     A  bankrupt  or  insolvent  act  ought  not  to 
be  presumed  to  have  been  intended  to  reach  foreign  contracts; 
unless  it  be  so  declared.     If  Speyer  was  to  be  deemed  dis- 
charged for  any  suit  here,  within  the   United  States,  for  the 
German  debts,  by  force  of  his  discharge  under  the  bankrupt 
act,  (and  this  is  a  point  which  I  am  not  willing  to  concede  with- 
out further  consideration,)  yet  that  would  not  satisfy  the  terms 
of  the  deed  of  trust,  unless  the  discharge  here  would  operate  as 
a  discharge  in  Germany,  where  the  debts  were  contracted.    He 
must  be  "  wholly  and  absolutely  and  perpetually  discharged 
from  all  manner  of  liability  for  the  payment  of  those  debts ; " 
and  can  we  say,  or  can  we  believe,  that  if  Speyer  had  returned 
to  his  native  German  country,  where  his  father  resided,  and 
where  the  debts  were  contracted,  that  he  could  have  pleaded 
his  discharge  here  in  bar  of  a  suit  there  ?     It  does  not  appear 
in  what  part  of  Germany  the  debts  were  contracted  ;  but  we 
know,  that  in  several  parts  of  it  there  is  no  such  thing  as  a 
debtor's  discharge  by  the  assignment  of  his  property.     Hu- 
berussays,  (Prcdec.  torn-.  2.  1454,)  that  secundumjus  nostrum, 
cessio  bonorum  invitis  creditoribus,  debitorem  a  carcere  publico 
non  liberat.     The  law  is  the  same  in  other  parts  of  Germany. 
Non  ubivis  tamen  locorum  hoc  benejicium,  (says  Heineccius, 
when  speaking  of  the  cessio   bonorum,)  indulgetur  obceratis. 
Cessat  sane  in  Saxonia  electorali,  ubi  debitores  nihilominus, 
urgentibus  creditoribus,  detruduntur  in  carcerem. — Jure  Lube- 
censi,  debitor,  qui  non  sohendo  est,  adjudicatur  creditori  sed 
[  *  442  ]       ita,  ut  quotidiana  opera  debitum  minuant.     (Heinec.  Elem.  Jur. 
Civil.  Secund.  *Ord.  Pand.  part  6.  lib.  42.  tit.  3.     De  Cessione 
Bonorum,  s.    254.)     In  Saxonia — Debitoribus  non  concesso 
flebili  cessionis  bonorum  benejicio.     (Heinec.  Elem.  Jus.  Ger- 
mania,  lib.  2.  tit.  13.  s.  387.)     And  is  it  not  very  improbable, 
that  in  the  German  states,  where  the  indefeasible  obligation 
340 


CASES  IN  CHANCERY.  M 

of  debts  is  so  strongly  maintained,  they  would  suffer  their        1818. 
policy  to  be  subverted,  and  their  subjects  defeated  in  their  <^*~^-* 
remedy  at  home,  by  the  bankrupt  or  insolvent  laws  of  foreign     M'MENOMI 
countries?     We  have  said,  that  we  would  not  suffer  such  a      MURR\Y 
a  control ;  (Van  Rough  v.  Van  Arsdale,  3  Caines,  154.)  and 
the  same  rule  prevails  in  other  states,  (1  Mass.  Rep.  198. 
3  Day's  Rep.  82.     3  Binney,  201.     5  Bi-nney,  385.)  and  in 
England,  (Smith  v.  Buchanan,  1  East,  6.)     It  has  also  been 
decided  in  one  of  the  Circuit  Courts  of  the   United  States, 
(Van  Reimsdykv.  Kane,  1  Gall.  371.)  that  a  discharge  under 
an  insolvent  act  here,  is  no  discharge  of  a  contract  made  and 
to  be  executed  abroad. 

I  am  satisfied,  upon  the  whole,  that  there  is  no  weight  in 
this  objection. 

Another  objection  taken  to  the  force  of  this  trust  deed,  is, 
that  it  was  to  be  considered  a  mortgage,  and  ought  to  have 
been  registered,  to  give  it  effect  against  the  subsequent  as- 
signment of  Mark  and  Speyer. 

The  answer  to  this  is,  that  the  deed  speaks  for  itself,  and 
appears,  most  obviously,  to  be  a  conveyance  in  trust  for  the 
benefit  of  the  German  creditors ;  and  it  would  be  absurd  to 
bring  such  an  instrument,  creating  such  very  special  and 
complicated  trusts,  within  the  meaning  of  the  registry  act. 
That  act  relates  only  to  simple  conveyances  by  way  of  mort- 
gage for  the  payment  of  money,  at  certain  definite  periods ; 
and  the  provisions  in  it,  as  to  the  registry  and  discharge  of 
mortgages,  have  no  application  to  this  deed.  It  is  true,  that 
some  of  the  provisions  in  the  deed  speak  of  part  of  the  Ger- 
man creditors  as  being,  in  certain  events,  special  mortgagees 
or  conditional  owners ;  but  those  words  cannot  *change  the  [  *  443 
nature  of  the  instrument,  and  turn  the  trustee  into  a  mort- 
gagee. They  were  no  more  than  what  the  rules  of  equit} 
would  have  implied,  that  the  trust  was  to  continue,  and  the 
equitable  interests  of  the  creditors  to  remain,  until  the  objects 
of  the  trust  were  fulfilled,  and  no  longer. 

But  if  it  was  a  mortgage,  the  assignees  had  notice  of  it. 
In  the  examination  of  Mark  before  the  bankrupt  commis- 
sioners, he  gave,  in  his  schedule  marked  A,  an  account  of 
all  his  lands,  in  which  it  was  stated,  that  the  61,414  acres  in 
township  No.  5,  and  embraced  by  the  trust  deed,  were  con- 
veyed to  Murray,  in  trust  for  a  number  of  German  creditors, 
and  was  made  in  December  or  January  preceding;  and  in 
another  exhibit,  he  stated  those  lands  to  be  encumbered  by  a 
mortgage  to  Le  Roy  and  Son,  and,  for  the  security  of  debts 
owing  in  Germany,  amounting  to  100,000  dollars.  The  two 
assignees  appeared  and  proved  their  debts,  and  the  assign- 
ment to  them  must  have  contained  or  referred  to  the  sched- 

341 


443  CASES  IN  CHANCERY. 

1818.       ules  of  their   debts.     The   mention  of  the  trust   deed   in 
v.^~\^— xt^x  these  schedules,  on  which  the  assignment  was  founded,  was 

*  o  y 

M'MENOMY  sufficient  notice  to  supply  the  place  of  the  registry,  and  to 
MURRAY.  g've  ^  operation  prior  to  the  assignment  under  the  bankrupt 
commission.  This  was  at  least  a  notice  of  equal  certainty 
and  ought  to  be  of  equal  effect,  with  the  one  admitted  to  be 
sufficient  by  the  Court  of  Errors,  in  their  decision  in  MorcA 
last,  in  the  case  of  Dunham  v.  Dey,  (a)  on  appeal  from  a 
decree  of  this  Court. 

It  is  farther  objected  to  the  deed  of  trust,  that  it  was 
made  to  delay,  hinder,  and  defraud  creditors,  and  was, 
consequently,  void  within  the  statute  of  frauds. 

There  does  not  appear  to  me  to  be  the  least  shadow  of 
foundation  for  this  objection,  and  I  am  persuaded  the  deed 
was  made  with  upright  views,  and  for  just  cause. 

The  loan  of  40,000  dollars  from  Count  de  Rottenham,  and 
the  other  two  German  creditors,  was  made  upon  the  express 
j"  *  444  1  promise  of  security  in  American  lands  ;  and  when  *Mark  and 
Speyer  dissolved  partnership,  on  the  5th  of  August,  1799,  it 
was  agreed,  that  Mark,  in  whom  was  the  legal  title,  was  to 
convey  to  some  person,  to  be  thereafter  selected,  in  trust  for 
the  German  creditors,  the  lands  included  in  this  deed  of  trust. 
It  is  well  settled — and  it  is  not  in  my  power  to  alter  the  rule — 
that  a  debtor  may  give  preferences  when  no  legal  lien  inter- 
venes, and  when  it  is  done  fairly,  and  from  honest  motives ; 
and  the  defendants,  M.  fy  S.,  both  declare,  that  they  deemed 
themselves  solvent  when  they  made  the  deed.  There  is 
nothing  in  this  case  from  which  any  fraud  can  be  inferred, 
unless  it  be  from  the  provisions  in  the  deed  itself;  and  on  a 
careful  examination  of  them,  I  see  nothing  to  support  the 
inference.  All  the  directions  and  limitations,  when  taken 
and  compared  together,  were  for  the  more  effectual,  safe, 
and  beneficial  execution  of  the  trust,  and  for  the  interest  of 
the  foreign  creditors.  It  is  to  be  observed,  that  the  creditors, 
for  whose  benefit  the  trust  was  created,  were  foreigners 
residing  in  Germany,  and  who  could  not  take  any  imme- 
diate or  useful  control  of  the  subject ;  and  it  was  necessary 
to  make  provisions  for  numerous  contingencies  which  might 
arise,  and  which  these  creditors  themselves  could  not  be 
prepared  to  meet.  I  am  entirely  persuaded  of  the  good 
faith  of  M.  fy  S.  in  the  creation  of  the  trust,  and  that  the 
intention  was  to  secure  those  distant  creditors,  who  had  the 
strongest  claims  to  attention. 

I  have  not  thought  it  necessary  to  notice  the  objection 
mads  to  a  want  of  delivery  of  the  deed  to  the  trustee,  for 
it  is  extremely  obvious,  from  the  answers,  that  the  delivery 

342  (a)  Vide  15  Johns.  Rep.  545. 


CASES  IN  CHANCERY.  444 

was  to  tne  trustee,  and  that  when  it  is  said,  in  one  place,  that        1818. 

the  delivery  was  to  Mark,  it  was  evidently  a  mistake.     The  s^— x/-^- 

agreement,  signed  by  the  respective  counsel,  and  admitting     M'MEKOMY 

certain  facts  to  be  deemed  proved,  states,  that  the  deed  was      MURRAY 

duly  executed  and  delivered  on  the  24th  of  January,  1800. 

The  provision  in  one  part  of  the  deed,  that  the  trustee  was 

not  to  sell  below  the  price  of  two  *dollars  an  acre,  without       [  *  445  J 

the  consent  of  M.  fy  S.,  was  qualified  with  the  exception, 

"  unless  compelled  to  sell  for  a  less  price  by  a  decree  of  some 

Court  of  competent  jurisdiction."     This    was    placing  the 

trust,  in   that  particular,  under  the  guidance  of  this  Court, 

and  could  not  have  been  intended  to  place  in  M.  ^-  S.  a 

control  injurious  to  the  creditors.     I  have  no  doubt  the  whole 

provision  was  intended  for  their  greater  security,  considering 

they  were  too  far  removed  to  exert  any  personal  direction. 

There  was,  however,  in  the  latter  part  of  the  deed,  a  general 

power  to  sell  at  public  or  private  sale,  on  cash  or  credit,  at 

the  discretion  of  the  trustee,  without  limitation  of  price. 

All  the  objections  to  the  trust  deed  appear  to  me  to  be 
destitute  of  any  real  force. 

2.  We  are  next  to  consider  the  validity  of  the  deed  of 
the  21st  of  April,  1800,  from  Speyer  to  Murray,  of  two  lots 
of  land  in  the  city  of  New-York,  which  belonged  exclusively 
to  Speyer. 

These  lots  were  sold  to  Murray  for  500  dollars,  for  which 
Murray  gave  his  note,  which  Speyer  got  immediately  dis- 
counted at  one  of  the  banks  for  his  own  use.  It  is  denied 
that  this  sale  was  made  in  contemplation  of  bankruptcy ;  but 
Murray  admits,  that  this  sale  was  in  trust  to  pay  the  surplus, 
if  any,  arising  on  a  future  sale  of  the  lots,  to  the  order  of 
Speyer,  who  directed  it  to  go  to  pay  a  debt  due  to  his  father 
in  Germany. 

There  is  nothing  in  this  transaction  that  will  warrant  us  to 
conclude,  that  this  deed  was  made  in  contemplation  of  bank- 
ruptcy, and  in  fraud  of  the  bankrupt  act,  which  was  passed 
the  4th  of  April,  1800.  That  act  was  not  to  operate  upon 
what  were  declared  to  be  acts  of  bankruptcy,  except  such  as 
were  committed  after  the  1st  day  of  June  following.  This 
was  a  fair  and  bona  Jlde  sale,  and,  probably,  for  a  full,  if  not 
an  enhanced  price  ;  and  it  does  not  appear  that  the  lots  have 
since  been  able  to  produce  a  surplus,  though  an  effort  has 
been  made  to  sell  them. 

*Upon  the  whole,  my  opinion  is,  that  there  is  no  founda-       [  *  446  ] 
tion  for  the  bill.     It  appears,  however,  to  be  a  part  of  the 
agreement  of  the  counsel,  that  an  account  was  to  be  taken 
of  the  German  debts,  if  those  creditors  are  deemed  to  have 
a  valid  security  under  the  trust  deed.     If  the  plaintiff  shall 

343 


446  CASES  IN  CHANCERY. 

1818.  deem  such  a  reference  material,  he  is  at  liberty  to  have  it,  ii 

»^^^v—^*^'  he  shall  so  elect,  within  thirty  days,  or,  otherwise,  the  hill 

M'MENOMIT  will  stand  dismissed. 
ROOSEVELT.  Decree  accordingly. 


M'MENOMY  against  ROOSEVELT  and  other? 

A  debtor  in  failing  circumstances,  or  insolvent,  may,  bonajide,  ja-efer  one 
creditor  to  another.  A  conveyance  by  a  debtor  of  his  property,  to 
secure  a  bona  fide  creditor,  executed  prior  to  the  1st  of  June,  1800, 
though  made  in  contemplation  of  bankruptcy,  is  valid,  not  being  with- 
in the  purview  of  the  bankrupt  law  of  the  United  States,  of  the  4th  of 
^ipril,  1800,  which  did  not  go  into  operation  until  after  the  1st  of  June 
following,  nor  fraudulent  at  common  law. 

Jum  12,  is,  MARK  AND  SPEYER  were  partners  in  trade,  in  the 
15,and  Sept.  28.  c^  Qf  jyew_  York,  and,  by  articles,  dissolved  their  copartnership 
in  August,  1799.  Certain  tracts  of  land  belonged  to  them, 
at  the  time  of  the  dissolution,  the  legal  title  to  which  was 
vested  in  M.  One  of  these  tracts  was  conveyed,  in  De- 
cember, 1799,  to  John  Murray,  in  trust,  to  secure  certain 
German  creditors.  (See  the  last  case.)  The  bill  of  the 
plaintiff  stated,  that  M.  fy  S.  had  ceased  their  ordinary 
mercantile  business  in  1799,  and  were  insolvent ;  and  that, 
in  contemplation  of  bankruptcy,  M.,  in  whom  the  legal  title 
to  the  real  estate  of  the  copartnership  was  vested,  on  the  1st 
of  March,  1800,  gave  a  bond  to  John  Murray,  for  6,000  dol- 
[  *447  ]  lars,  with  a  warrant  of  attorney,  and  a  mortgage  *on  land  in 
Oneida  county,  to  secure  the  same,  the  object  of  which  was 
to  provide  money  for  M.  fy  S.  ,in  case  of  their  imprison- 
ment, and  to  exempt  their  lands  from  execution.  That 
judgment  was  entered  up  on  the  bond,  the  19th  of  April, 
1800;  that,  on  the  15th  of  April,  1800,  Mark  executed 
a  deed  to  Samuel  Jones,  jun.,  and  Solomon  Townsend,  of 
their  lands,  except  those  on  Lake  Champlain,  all  of  which 
were  under  encumbrances ;  that  M.,  at  the  same  time,  executed 
a  judgment  bond,  conditioned  to  pay  /.  fy  T.  100,000 
dollars,  and  that  the  judgment  thereon  was  docketed  the 
19th  of  April,  1800.  That  the  deed  and  judgment  were 
without  consideration,  and  in  trust  for  M.  fy  S.,  to  keep 
their  lands,  under  their  own  control,  and  with  a  view  to 
hinder  and  defraud  their  creditors.  That  on  the  31st  of 
May,  1800,  M.  &/•  S.,  in  contemplation  of  bankruptcy 
344 


CASES  IN  CHANCERY.  441 

executed  dners  instruments,  some  of  which  were  merely  1818. 
colorable,  and  others  pretended  to  be  for  the  security  of  cer- 
tain  creditors ;  that  S.  executed  a  bill  of  sale  of  his  furniture 
to  John  Murray,  and  retained  the  possession,  and  afterwards 
agreed  to  pay  the  plaintiff,  who  had  sued  them  for  this  fur- 
niture. That  S.  also,  about  the  same  time,  conveyed  to 
Murray  two  lots  in  Neiv-York,  for  the  consideration  of  five 
hundred  dollars,  but  in  trust,  after  payment  of  that  sum,  to 
secure  a  pretended  debt  due  to  his  father ;  also,  a  share  in 
the  Tontine  Coffee-House ;  a  bond  of  one  /.  C.  F.  R.  for 
620  dollars,  and  a  note  of  Bainbridge  for  204  dollars,  in  trust 
for  the  same  purpose.  That  S.  received  the  dividend  of  the 
Tontine  share,  and  the  other  things  assigned  are  held  for  his 
use.  That  M.,  also,  transferred  a  share  in  the  Tontine  Coffee- 
House  to  his  nephew,  but  for  his  own  use.  That,  on  the 
same  31st  of  May,  1800,  M.  $"  S.  executed  a  deed,  which 
recited  the  conveyance  and  judgment  to  /.  fy  T.,  trie  insol- 
vency of  M.  &/•  *S'.,  and  that  J.  J.  Roosevelt  had  lent  them 
money,  and  endorsed  their  notes,  believing  them  to  be  sol- 
vent, and  that  they  thought  it  their  duty  to  secure  him,  in 
preference  *to  other  creditors,  and  it  was,  therefore,  declared 
that  the  said  conveyance  and  judgment  were  intended  to 
secure  jR.,  and  the  surplus  for  all  their  creditors,  except  those 
in  Europe ;  and  in  case  of  any  commission  of  bankruptcy  or 
proceedings  under  the  insolvent  act,  and  assignment  under 
them,  the  trustees,  /.  Sf  T.,  were  to  retain  a  sufficient  sum 
to  indemnify  R.  before  they  conveyed  to  the  assignees,  and 
were  not  to  convey  until  such  satisfaction,  unless  compelled 
by  law  so  to  do.  That  this  deed,  the  provisions  of  which 
were  long  and  numerous,  was  made  to  delay  creditors. 
That  M.  fy  S.,  who  had  been  marine  insurers,  on  the  13th 
of  June,  1800,  gave  an  authority  to  John  Ferrers,  their  agent, 
to  pay  to  /?.  all  moneys  he  should  receive,  and  which  F. 
agreed  to  do.  That  M.  §••  S.,  in  July,  1800,  committed  an 
act  of  bankruptcy,  upon  which  a  commission  was  issued,  and 
they  were  declared  bankrupts  under  the  act  of  the  United 
States ;  and  the  plaintiff  and  S.  Townsend  were  appointeu 
assignees.  That  parts  of  the  lands  so  conveyed  to  J.  fy  T. 
und  to  M.  had  been  sold  under  succeeding  encumbrances. 
That  27,610  acres  of  land  were  unencumbered,  which  the 
plaintiff  alleged  ought  to  be  distributed  under  the  com- 
mission. That  R.  Sf  M.  knew  of  the  insolvency  of  M.  fy 
S.  at  the  time  of  the  said  conveyances.  Prayer  lor  a  dis- 
jovery,  and  that  the  conveyances  and  judgments  to  J.  &/•  T. 
and  to  Murray  might  be  declared  fraudulent  and  void,  as 
against  the  plaintiff;  and  that  they  nuty  be  assigned  to  him, 
VOL.  III.  44  345 


448  CASES  IN  CHANCERY. 

1813.       in  trust,  for  the  creditors  of  M.  4"  S.,  and  for  an  account 

v^^-s^— ^,/  of  moneys  received  under  the  assignments,  &c.  &c. 
M'MENOMY         The  answers  of  the  defendants  contained  a  full  detail,  as 

ROOSEVELT.  to  a^  tne  transactions  of  M.  &/•  S.  and  the  matters  charged 
in  the  bill.  R.  stated,  that,  at  different  times,  between  1796 
and  1799,  he  lent  money  to  M.  fy  S.,  endorsed  notes  for 
them,  and  became  their  surety  to  a  large  amount,  without 
any  consideration.  That,  under  a  promise  of  payment  and 
indemnity  by  M.  fy  S.,  he  paid  a  number  of  his  endorse- 

f  *  449  ]  ments  out  of  his  *own  funds.  That  he  applied  for  security, 
and,  under  a  promise  of  it,  made  further  loans  and  endorse- 
ments. That  M.  fy  S.  dissolved  partnership  on  the  5th  of 
August,  1799,  and  M.  was  to  take  all  the  partnership  prop- 
erty, and  pay  all  the  debts,  and  to  pay  S.,  who  was  to  keep 
his  separate  property,  10,000  dollars.  That  in  October,  1799, 
the  defendant  R.  applied  to  M.  for  the  security  which  had 
been  promised,  who  proposed  to  give  a  judgment  bill  for 
50,000  dollars,  payable  in  60  days ;  and  on  the  10th  of  De- 
cember, 1799,  executed  such  a  bill,  which  the  defendant 
lodged  with  N.  J.  R.  as  his  trustee,  to  be  used  as  he  directed. 
That  in  March,  1800,  N.  J.  R.,  on  being  applied  to,  refused 
to  give  him  the  judgment  bill,  because,  if  used,  it  might  pro- 
duce a  sacrifice  of  the  property  of  M.  That  the  defendant 
R.  then  applied  to  M.,  and  complained  to  him  of  this  re- 
fusal, who  promised  to  give  other  security.  That  in  the 
beginning  of  April,  J.  was  instructed  to  prepare  the  con- 
veyance to  J.  ^  T.  of  the  Oneida  lands,  and  the  judgment 
bond  to  J.  &f  T.,  and  which  were  executed  on  the  15th  of 
April,  1800.  The  deed  was  recorded  the  24th  of  April, 
1800,  and  the  judgment  docketed  the  19th  of  April,  1800. 
That,  on  the  31st  of  May,  1800,  M.  and  the  trustees,  J.  &/• 
T.,  executed  a  declaration  of  trust,  reciting  the  deed  and 
judgment  bond,  &c.,  that  R.  had  made  advances,  and  in- 
curred responsibilities  for  M.  &f  S.  at  their  request, .  and  on 
the  faith  of  their  solvency,  and  that  M.  &f  S.  had  always 
considered  themselves  bound  to  give  him  security,  in  pref- 
erence to  other  creditors.  That  £  T.  was  a  creditor  of 
M.  fy  S.,  but  was  to  have  no  preference,  &c.  And  the 
deed  then  declared  the  trusts  to  be,  (1.)  to  pay  the  charges 
of  the  trust ;  (2.)  for  the  security  and  payment  of  R.  of  all 
moneys  lent  or  paid  by  him,  or  afterwards  to  be  paid,  on 
existing  responsibilities,  for,  or  on  account  of  M-  fy  S.,  or 
either  of  them ;  (3.)  to  pay  the  surplus,  ratably,  to  the 
American  creditors  of  M.  &/•  S.,  &c. ;  (4.)  that  all  the 
American  creditors  be  allowed  to  the  1st  of  January,  1801 

[  *  450  J  *to  take  the  lands  in  full  of  their  debts,  and  release  M-  & 
346 


CASES  IN  CHANCERY.  450 

S. ;  and  if  so,  the  trustees  to  release  to  them,  subject  to  th&        1818. 
encumbr?Jices,  &c.,  provided  the  creditors  paid  R.  for  all  his    .^^-^/-^^^ 
advances,  and  indemnified  him  against  his  responsibilities,     M>MENOMY 
and  the  trustees  to  sell  the  lands,  and  deduct  out  of  sales,    -<tooSE'VK1T 
first  to  pay  R.,  &c. ;    (5.)  that  if,  pending  the  trust,  a  com- 
mission of  bankruptcy  issued  against  M.  fy  S.,   and  they 
should  assign  their  property  under  such  act,  or  under  an.  in 
solvent  act  of  this   state,  the   trustees  might  assign  to  such 
assignees  under  the  commission  of  bankruptcy  or  insolvent 
act,  retaining,  however,  sufficient  of  the  trust  fund,  or  prem- 
ises, to  pay  and  indemnify  R.,  and  they  were  not  to  assign 
until  he  was  so  paid  and  indemnified,  unless  compelled  by 
law  to  do  so ;  (6.)  that  the  trustees  had  power  to  sell  the 
lands  held  in  trust,  on  such  terms  as  they  should  judge  best, 
and  to  sue  out  a  fi.  fa.,  but  not  a  ca.  sa.,  against  M.  on  the 
judgment ;  (7.)  that  the  trustees  should  have  power  to  settle 
debts,  or  to  refer  them  to  arbitration,  and  to  convert  moneys 
in  stock,  and  to  make  partition,  &c.  &c. 

The  answer  further  stated,  that  the  declaration  of  trust 
was  recorded  in  Oneida  county,  the  26th  of  June,  1800,  artd 
that  the  deed,  judgment,  and  declaration  of  trust,  were,  in 
substance,  agreed  on  by  M.  fy  S.  prior  to  the  15th  of  April, 
1800,  under  the  advice  of  /.,  and  were  made  to  carry  into 
effect  the  agreement  of  M.,  to  give  R.  security,  and  for  the 
purposes  therein  declared.  The  defendant  J.  said,  that  he 
considered  himself  a  trustee  from  the  15th  of  April,  1800, 
upon  the  terms  of  the  original  agreement,  and  would,  at  any 
time,  have  executed  a  declaration  of  trust  on  the  request  of 
R,,  and  that  the  deeds  and  securities  were  all  made  in  con- 
sideration of  the  advances  and  engagements  of  R.  for  M. 
fy  S.,  and  for  his  security  and  indemnity,  according  to 
previous  assurances  made  to  him,  on  his  application  for 
security. 

*The  answer  further  stated,  that  J.  Ferrers  (since  dead)  |  *45I 
was  agent  of  M.  &/•  S.,  as  insurers,  who,  on  the  13th  of  June, 
1800,  gave  R.  an  order  on  him  for  all  moneys  coming  to  his 
hands,  &c.,  which  was  accepted  by  F.  That  F.,  after  the 
bankruptcy  of  M.  fy  S.,  having,  as  their  agent,  received 
750  dollars,  the  assignees  of  M.  fy  S.  brought  an  action 
against  F.,'m  the  Mayor's  Court  of  New- York,  to  recover  the 
money,  when  a  verdict  was  found  for  the  defendant.  A  new 
trial  having  been  granted,  the  cause  was  removed  to  the 
Supreme  Court,  and  tried  in  April,  1806,  when  a  verdict  was 
found  for  the  defendant.  That  the  cause  was  defended,  on 
its  merits,  by  R.,  and  all  the  deeds,  assignments,  judgments, 
and  securities,  above  mentioned,  charged  to  be  fraudulent, 
were  produced  in  evidence  to  the  jury,  and  M.  fy  S.  exam- 

347 


451  CASES  IN  CHANCERY. 

1818.       med  as  witnesses ;  and  that  the  Supreme  Court,  on  motion 

^r~^s-*+~s  of  the  plaintiffs  for  a  new  trial,  refused  to  set  aside  the  verdict. 

M'MENOMY         It  was  admitted,  that  suits  were   pending  against  M.  fy 

ROOSEVELT.    &»  m  1800,  and  noticed  for  trial  on  the  25th  of  March,  but 

not  tried ;  and  that  nine  judgments  were  docketed  against 

M.  fy  S.  between  the    19th  of  April  and   10th  of  May, 

1800.     That  M.  fy  £  became   bankrupts  on  the  llth  of 

July,  1800. 

The  defendants  averred,  that  all  the  conveyances,  assign- 
ments, &,c.,  were  bona  Jide,  and  made  to  secure  just  debts 
due  to  creditors,  except  the  share  in  the  Tontine  Coffee-House, 
which  was  in  the  name  of  M.,  who  had  no  interest  in  it,  being 
a  mere  naked  trustee  for  his  nephew,  L.  M.,  who  was  an 
infant,  and  who,  after  the  transfer  to  him,  on  the  first  of 
August,  1799,  received  the  dividends. 

It  was  agreed  by  the  counsel,  that  the  facts  in  the  case  in 
the  Supreme  Court,  of  M'Mcnomy  v.  Toivnsend,  (see  3  Johns. 
Rep.  71.)  except  the  documents,  and  the  evidence  in  the 
last  case,  of  the  same  plaintiff  against  Murray,  (ante,  p.  435 
— 439.)  should  be  admitted  as  evidence  in  this  case. 

[  *  452  ]  *N.  Pendleton  and  T.  A.  Emmet,  for  the  plaintiff.     They 

cited  3  Johns.  Rep.  61.     6  Bro.  P.  C.  491. 

June  12,  is,  S.  Jones,  jun.,  and  Wells,  contra.  They  cited  Ogden  v. 
Jackson,  1  Johns.  Rep.  370.  Phoenix  v.  Assignees  of  Ingra- 
ham,  5  Johns.  Rep.  512.  (a) 

The  cause  stood  over  for  consideration  until  this  day. 

THE  CHANCELLOR.  The  object  of  this  bill  is  to  set  aside 
the  deed  to  Jones  and  Townsend,  of  the  15th  of  April,  1800, 
and  the  judgment  in  their  favor,  which  was  entered  up  and 
docketed  on  the  19th  of  April,  1800.  The  deed  was  given, 
and  the  judgment  confessed  by  Mark,  to  secure  the  defend- 
ant Roosevelt,  for  advances  made,  and  responsibilities  incurred 
for  M.  fy  S. 

The  objection  to  the  validity  of  these  securities  is,  that, 
1.  They  were  given  with  intent  to  delay,  hinder,  and  de- 
fraud creditors ;  and,  2.  That  they  were  given  in  contem- 
plation of  bankruptcy,  and  in  fraud  of  the  bankrupt  act  of 
the  United  States. 

1.  Roosevelt  was  a  bona  Jide  creditor  of  the  house  of 
M.  &/•  S.  on  the  1st  of  January,  1800,  to  a  large  amount, 

(a)  Vide  also  Wilt  v.  Franldin,  1  Binney,  502.  Lippincot  v.  Barker,  2  Bin 
new,  174.  M' fillister  v.  Marshall,  6  Binney,  338.  Murray  v.  Riggst  15 
Johns.  Rep  571.  in  Error.  S.  C.  2  Johns.  Ch.  Rep.  565. 

348 


CASES  IN  CHANCERY.  452 

if  we  include  all  his  loans  and  engagements  for  them.  He  1813. 
had  long  before,  or  between  1795  and  1799,  become  their  ^r-^.^^, 
surety  and  endorser,  and  also  accommodated  them  with  M'MENOMY 
loans  ;  and  it  appears,  that  when  he  first  became  their  surety,  RooSpvELT 
he  was  promised  security  and  indemnity.  After  repeated 
applications,  he  obtained,  in  December,  1799,  from  Mark, 
who  had  assumed  all  the  debts,  and  taken  all  the  property 
of  the  house  of  M.  fy-  »$'.,  a  sealed  note  for  50,000  dollars, 
with  a  warrant  of  attorney  to  confess  judgment.  But  the 
note  was  placed  in  the  hands  of  a  third  *person,  (Nicholas  [  *  453  " 
J.  Roosevelt,)  at  the  request  of  M..  who  afterwards  refused 
to  give  it  up,  to  have  judgment  entered  upon  it.  'It  accord- 
ingly ceased  to  be  any  security  to  the  defendant,  and  the 
defendant  then  renewed  his  applications  to  M.  for  other  and 
better  security.  In  the  beginning  of  April,  1800,  M.  agreed 
to  give  further  security  to  the  defendant  R.,  by  vesting  lands 
in  Jones  and  Toivnsend,  as  trustees,  for  his  reimbursement 
and  indemnity.  The  deed  and  judgment  bond  were  accord- 
ingly prepared  and  executed  on  the  15th  of  April,  and  the 
object  was  to  give  the  defendant  R.  a  preference,  in  conse- 
quence of  his  disinterested  loans  and  engagements  for  M.  fy 
iS'.,  and  their  long  previous  promise  to  secure  him.  The 
terms  of  the  trust  were  then  agreed  upon,  and  after  the 
defendant  R.  was  satisfied,  the  surplus  property  so  to  be  se- 
cured, was  to  be  appropriated  to  the  discharge  of  the  debts  of 
the  other  American  creditors.  The  declaration  of  trust  was 
not  executed  until  the  31st  of  May  following,  which  delay 
arose,  according  to  the  testimony  of  Jones,  the  trustee,  from 
accident  and  the  pressure  of  other  business.  There  can  be 
no  doubt  but  that  the  declaration  of  trust  in  May  was  only  a 
written  and  more  authentic  evidence  of  the  terms  and  con- 
ditions of  the  trust  agreed  upon  by  the  parties,  at  the  exe- 
cution of  the  deed  and  judgment  bond  in  April;  and  Jones 
says,  he  considered  himself  such  a  trustee  from  the  execution 
of  the  deed. 

Upon  what  grounds  can  it  be  contended  that  these  secu- 
rities were  fraudulent,  within  the  statute  of  frauds  ?  They 
were  not  made  for  the  purpose  of  defeating  executions,  but 
to  secure  the  defendant ;  and  M.  felt  himself  under  the  most 
pressing  obligations  to  give  Roosevelt  a  preference.  It  is  not 
now  tc  be  denied,  as  I  have  frequently  had  occasion  to  say, 
and  generally  with  regret,  that  a  debtor  in  failing  circum- 
stances, and  even  avowedly  insolvent,  may  give  such  prefer- 
ence ;  and  ihe  only  question  is,  Was  this  a  bona  fide,  or  only 
a  covenous  preference  *for  fraudulent  purposes  ?  There  can  [  *  454  ] 
be  no  just  pretence  for  that  inference. 

A    number  of  other  acts  of  M.  &/•  S.  have  been  stated, 

349 


154  CASES  IN  CHANCERY. 

1818.  from  which  evidence  of  a  general  fraudulent  design  has  been 
-^^-x^-^^x  attempted  to  be  deduced ;  but  they  have  no  necessary  con- 
M'MENOMY  nectioii  with  this  case,  and  ought  not  to  affect  the  rights  of 
RCOSXVELT  ^e  defendant  R.  under  these  securities,  created  for  a  valid 
and  meritorious  purpose.  I  do  not,  however,  believe  there 
was  any  actual  fraud  or  a  fraudulent  intent  in  any  of  the 
proceedings  of  M.  ty-  S.  They  secured  their  German  cred 
itors  by  one  deed  in  trust,  founded  on  original  promises  made 
at  the  creation  of  the  debt.  They  gave  the  defendant  a 
preference  founded  on  a  like  original  promise ;  and  then  the 
surplus  of,  that  very  property  was  to  go  to  all  their  othei 
American  creditors.  These  unfortunate  debtors  had  invested 
a  great  proportion  of  their  capital  in  wild  and  unproductive 
lands,  and  their  efforts  in  1799  and  1800  were  to  save  their 
property,  as  much  as  possible,  from  useless  and  ruinous  sac- 
rifices, for  the  very  purpose  of  enabling  it  to  pay  all  their 
debts.  The  most  unfavorable  act  that  M.  did,  was  giving 
the  bond  and  mortgage  to  Murray  for  6,000  dollars,  but  its 
object  at  that  time  was  one  of  self-preservation  and  necessity. 
It  was  to  enable  him  to  live  while  in  prison,  and  to  have  the 
ability  to  manage  his  extensive  and  complicated  concerns  for 
the  settlement  of  his  debts.  The  act  was  dictated  by  an  an- 
ticipated necessity,  and  as  the  necessity  did  not  occur,  the 
act  was  rescinded,  and  the  bonds  never  made  use  of. 

The  bills  of  sale  of  the  furniture  of  M.  fy  S.  were  fraud- 
ulent only  in  judgment  of  law,  because  of  the  indulgence 
of  the  trustees  in  allowing  the  grantor  to  keep  possession. 
They  were  made  to  pay  creditors,  and  I  do  not  perceive  the 
evidence  of  fraud  in  fact,  or  how  they  can  or  ought  to  affect 
the  trust  deed  resting  on  a  fair  and  valuable  consideration. 
*  455  ]  *Some  stress  was  laid,  also,  upon  the  assignment  of  a  share 

in  the  Tontine  CofTee-House,  as  if  that  was  merely  colorable 
on  the  part  of  M.  This  appears  to  be  a  most  unfounded 
surmise :  the  share  always  belonged  to  Lewis  Mark,  a  nephew 
of  M.,  and  for  whom  he  acted  as  trustee,  in  consequence  of 
his  infancy. 

I  have  carefully  examined  all  the  transactions  on  the  part 
of  M.  &/•  S.,  and  the  details  as  stated  in  the  answers,  and  I 
have  been  struck  with  the  candor  of  the  narration,  and  the 
close  correspondence  between  the  answers  and  the  proofs.  I 
should  deem  it  a  misfortune  to  be  obliged  to  draw  the  con- 
clusion of  fraud,  in  this  case,  after  the  lapse  of  so  many  years, 
and  when  several  of  the  actors  are  dead,  and  when  two  dis- 
tinct juries  have  passed  upon  the  case,  and  contradicted  the 
charge.  Indeed,  when  I  consider  that  these  deeds  and  as- 
signments in  trust  were  all  prepared  under  the  direction  and 
advice  of  Mr.  Jones,  one  of  the  trustees  for  Roosevelt,  it  would 
350 


CASES  IN  CHANCERY.  455 

be  difficult  for  me  to  believe  that  fraud  could  have  been  de-        1818. 
vised  and  matured  by  the  debtor,  and  yet  have  escaped  the  v_x~v— ^»/ 
observation  of  an  agent  so  incapable  of  aiding,  and  yet  so  ca-     M'MEKOMT 

pable  to  detect  It.  ROOSEVKLT 

2.  The  next  point  is,  whether  the  deed  and  judgment  were 
void,  because  given  in  contemplation  of  bankruptcy. 

The  first  point  embraced  the  consideration  of  the  question 
of  actual  fraud.  This  only  relates  to  a  technical  fraud,  or  an 
act  done  to  defeat  the  equality  of  the  bankrupt  law. 

The  bankrupt  act  of  the  United  States  was  passed  on  the 
4th  of  April,  1800  ;  and  the  first  section  declared  that  "  from 
and  after  the  1st  day  of  June,  then  next,  if  any  merchant 
should,  with  intent  unlawfully  to  delay  or  defraud  his  credit- 
ors, depart  from  the  state,  or  conceal  himself,  &c.,  or  fraud- 
ulently procure  himself  to  be  arrested,  or  his  property  taken 
in  execution,  or  secretly  convey  away  or  conceal  his  goods, 
or  make  any  fraudulent  conveyance  of  his  lands  or  chattels,  or 
make  or  admit  any  *false  or  fraudulent  security,  or  evidence  f  *  456  "J 
of  debt,  &c.,  every  such  person  shall  be  deemed  and  ad- 
judged a  bankrupt. 

These  acts  of  bankruptcy  include  the  very  acts  charged 
upon  M.  by  the  plaintiff;  and  yet  the  statute  expressly  con- 
fines its  operation  to  such  acts  committed  "  from  and  after 
the  1st  of  June."  If  such  acts  as  those  enumerated  are  not 
within  the  purview  of  the  bankrupt  act,  though  committed 
on  the  1st  of  May,  then  surely  an  honest  preference  given  to 
a  creditor,  on  the  15th  of  April  preceding,  cannot  come  within 
the  reach  of  the  act.  There  is  no  reason  why  a  preference 
given  even  in  contemplation  of  bankruptcy  should  fall  within 
the  act,  when  a  fraudulent  concealment  or  conveyance  of 
property  will  not.  The  latter  mischief  is  direct  and  great, 
and  involves  moral  turpitude.  The  other  act  is  innocent  and 
just,  but  breaks  in  upon  the  policy  of  the  law. 

The  10th  section  of  the  act  has  the  same  meaning  as  the 
first,  when  it  declares,  that  the  assignment  shall  be  good 
against  the  bankrupt,  and  "  all  persons  claiming  by,  from,  or 
under,  him,  by  any  act  done  at  the  time,  or  after  he  shall 
have  committed  the  act  of  bankruptcy."  The  17th  section 
seems  to  be  retrospective,  and  to  allude  to  acts  of  the  bank- 
rupt done  "  prior  to  his  becoming  a  bankrupt ;  "  but  it  only 
applies  to  conveyances  of  property  "  with  intent  to  defre.ud 
creditors,"  and  gives  to  the  commissioners  power  to  assign 
property  so  conveyed ;  and  such  conveyances  are  void  at 
common  law.  If  conveyances  of  property  made  merely  in 
contemplation  of  bankruptcy  were  to  be  affected  by  the  act, 
though  done  prior  to  the  first  of  June,  or,  in  the  words  of 
this  section,  "  prior  to  his  becoming  a  bankrupt,"  we  should 

351 


456  CASES  IN  CHANCERY. 


have   had   some   express   provision,   as   in  the  other   case. 
Nothing  can  be  clearer,  than  that  the  bankrupt  act  ought  not 
M'MENOMY     to  be  construed  to  control  acts  done  prior  to  the  day  on  which 
ROOSEVELT     ^  was  to  S°  m*°  operation.     It  would  require  a  very  express 
T  *  457  1       *provision  to  give  it  such  a  retro-active  effect,  because  it  is 
repugnant  to  another  express  provision. 

The  case  of  Vickars  v.  The,  Atty.  Gen.  of  Ireland  (6  liro. 
P.  C.  491.)  was  mentioned  by  one  of  the  counsel  for  the 
plaintiff.  In  that  case,  certain  tobacco  was  imported,  on  the 
28th  of  December,  1771,  and  the  existing  duties  paid.  On 
the  1st  of  January,  1772,  a  statute  passed,  imposing  an  ad- 
ditional duty,  and  on  information  filed,  the  importer  was  held 
to  pay  that  additional  duty,  for  the  intention  of  the  legislature 
was  known,  as  the  vote  on  the  bill  had  passed  the  House  of 
Commons  on  the  21st  of  December.  The  decision  strikes 
me  as  unfounded  in  principle  ;  and  it  cannot  be  justified  on 
any  other  ground  than  the  one  taken  in  support  of  it,  and 
which  is,  that  where  no  particular  time  is  specified,  a  statute 
does,  by  legal  relation,  take  effect  from  the  first  day  of  the 
session.  And  that  rule  was  abolished  by  the  statute  of  33 
Geo.  III.  c.  13.,  from  "its  great  and  manifest  injustice,"  as 
the  preamble  in  that  statute  stated. 

The  plain  rule  in  this  case  is,  that  the  debtor  was  left  free 
to  act,  according  to  the  existing  law  of  the  land,  down  to  the 
day  on  which  the  bankrupt  act  was  to  control  and  govern 
the  conduct  of  the  merchant.  That  day  was  expressly  de- 
clared to  begin  "  from  and  after  the  first  of  June,"  and  the 
statute  had  nothing  to  do  with  his  prior  conduct,  except  in 
the  specified  cases.  This  is  the  only  safe  and  practicable 
doctrine,  and  therefore  we  have  no  concern  with  the  ques- 
tion, whether  the  deed  of  the  15th  of  April  was  done  in  con- 
templation of  bankruptcy.  It  is  immaterial  whether  or  not 
it  was  done  under  that  impression,  if  it  was  not  done  in  fraud 
of  the  rights  of  creditors.  And  if  that  was  truly  the  inquiry 
in  this  case,  I  should  incline  to  think  the  deed  good,  because 
it  was  founded  on  a  prior  engagement,  made  at  the  time,  to 
ffive  to  JR.  security  for  his  loans  and  name.  It  was  the  con- 
Bition  on  which  the  responsibility  was  incurred.  The  en- 
[  *  458  ]  gagement  was  founded  *on  a  good  consideration,  and  was 
binding  in  conscience:  a  conveyance  in  preference,  founded 
on  such  an  agreement,  and  in  fulfilment  of  it,  would  probably 
De  good,  though  bankruptcy  were  contemplated  when  the 
conveyances  was  made. 

This  doctrine  of  contemplation,  in  cases  of  bankruptcy, 
ought  not  to  be  pressed  with  too  much  force,  seeing  we  have 
nothing,  either  in  the  common  or  statute  law,  to  show  what 
it  is.  This  was  admitted  by  the  judges,  in  Fidgeon  v.  Sharpe 
352 


CASES  IN  CHANCERY.  453 

(5  Taunton,  539.)     The  cases  make  it  to  depend  upon  the  quo        1818. 
animo.     The  act  must  be  done  with  intent  to  contravene  the  ^^^-^^^^ 
bankrupt  laws.     It  cannot  be  in  fraud  of  the  bankrupt  laws,     M'MENOMT 
unless  the  actor  meant  it  should  be  so.     It  is  a  question  of    ROOSKVKIT 
fact.     A  man  may  be  in  difficulties,  and  not  stop  payment ; 
he  may  stop  payment,  and  not  be  insolvent ;  and  he  may  be 
insolvent,  and  not  be  a  bankrupt.     There  is  a  distinction  be- 
tween bankruptcy  and  insolvency ;  and  the  Court  of  C.  B., 
in  the  case  I  have  last  referred  to,  forbear  to  decide  whether 
the  contemplation  of  insolvency  only,  will  prevent  a  trader 
from  giving  a  preference  to  one  creditor  over  another. 

My  opinion  upon  the  case  is,  that  the  deed  of  the  15th  of 
April,  to  Jones  and  Townsend,  and  the  judgment  in  their 
favor  of  the  10th  of  April,  are  to  be  deemed  valid  securities, 
for  the  purposes  declared  in  the  declaration  of  trust  of  the 
21st  of  May ;  and  there  is,  consequently,  no  foundation  for 
the  bill.  If,  however,  the  plaintiff  shall  deem  a  reference 
material,  in  respect  to  the  demand  of  the  defendant  Roosevelt, 
and  the  state  of  the  property  so  held  in  trust,  he  is  at  liberty 
o  have  it,  within  thirty  days,  otherwise  the  bill  must  stand 
'ismissed. 

Decree  accordingly. 

VOL    III  45  363 


459*  CASES  IN  CHANCERY 

1818. 

HAINES 

BEACH.  ^HAINES  and  others  against  BEACH  and  others. 

[Approved,  5  Johns.  Ch.  94.] 

To  a  bill  for  foreclosure  and  sale  of  mortgaged  premises,  all  encura 
brancers,  or  persons  having  an  interest,  existing  at  the  commencement 
of  the  suit,  subsequent,  as  well  as  prior,  in  date,  to  the  plaintiff's  mort- 
gage, must  be  made  parties,  otherwise  they  will  not  be  bound  by  the 
decree. 

A  prior  mortgagee,  who  had  also  a  judgment  against  the  mortgagor, 
subsequent  to  a  second  mortgage,  and  on  a  sale  of  the  premises  under 
the  judgment,  had  purchased  the  equity  of  redemption,  cannot,  on  a 
bill  filed  against  the  second  mortgagee,  compel  him  to  pay  the  judg- 
ment, as  well  as  the  first  mortgage,  or  be  foreclosed.  But  the  encum- 
brances are  to  be  paid  in  the  order  of  time  in  which  the  respective 
liens  attached. 

July  i  and  THE  bill  stated,  that  the  plaintiffs  are  the  executors  of 
*  Rebecca  B.  Brazier,  deceased,  and  that  S.  M.  Brazier,  the 
infant,  is  sole  heir  and  devisee  of  R.  B.  B.,  deceased.  That, 
on  the  15th  of  March,  1808,  Daniel  Beach,  defendant,  ex- 
ecuted a  bond  to  R.  B.  B.  for  4,000  dollars,  payable  on  the 
15th  of  March,  1811 ;  and  a  mortgage  on  a  lot  of  ground  in 
Cortlandt  street,  as  security,  which  was  registered  the  18th 
of  March,  1808.  R.  B.  B.  died  about  the-  25th  of  August, 
1812 ;  and  her  will  was  duly  proved,  and  letters  testamentary 
were  granted  by  the  surrogate  of  New-York;  that  neither 
she,  nor  her  executors,  have  been  in  possession  of  the  prem- 
ises mortgaged.  Part  of  the  interest  on  the  mortgage  had 
been  paid,  but  the  principal,  and  the  residue  of  interest,  still 
remained  unpaid.  Prior  to  the  execution  of  this  mortgage, 
Beach  and  his  wife,  on  the  24th  of  December,  1804,  mort- 
gaged the  same  premises  to  Thomas  Gardner,  to  secure  the 
payment  of  1,000  dollars.  Gardner,  in  April,  1815,  filed  a 
bill  for  foreclosure  and  sale,  and  a  decree  for  the  sale  was 
made  the  21st  of  September,  1815,  and  the  premises  sold  by 
the  master,  on  the  23d  of  November,  1815,  to  the  defendant 
Moses  Field. 

The  bill  charged,  that  Gardner,  by  the  registry  of  the 
mortgage  to  Brazier,  and  the  probate  of  her  will,  had  notice 
[  *  460  ]  *of  the  rights  and  interest  of  the  plaintiffs,  but  did  not  make 
them  parties  to  his  suit,  nor  give  them  any  notice  of  it ;  and 
the  plaintiffs,  therefore,  insisted,  that  they  were  not  barred 
of  their  rights  and  interest  in  the  premises,  subject,  only  to 
the  debt  due  to  Gardner  on  his  prior  mortgage.  That  there 
are  judgments  unsatisfied  of  record  against  Beach,  the  mort- 
gagor, one  of  which  is  in  favor  of  Jonathan  Dixon,  for  9,500 
dollars,  docketed  the  12th  of  February,  1812,  and  that  Dixon 
354 


CASES  IN  CHANCERY. 


460 


is  dead,  leaving  the  defendants  H.  D.  and  R.  his  executors;        1818. 
and  another  judgment   in   favor  of  the  defendant  Strong,  s^-x,-^.^ 
docketed  the  26th  of  August,  1814,  for   278   dollars  and       HAINES 
84  cents.     Prayer,  that  the  mortgaged  premises  may  be  sold,       BEACH 
and  that,  after  paying  and  satisfying  the   first  mortgage  to 
Gardner,  the  plaintiffs  might  be  paid  what  is  due  to  them  on 
the  bond  and  mortgage  to  their  testatrix. 

Field,  defendant,  put  in  his  answer  and  plea,  admitting 
the  mortgage  to  G.,  and  the  bill  and  decree,  and  sale  of  the 
premises  to  him,  by  the  master,  for  1,508  dollars,  and  the 
deed  of  the  master  to  him  for  the  premises,  of  which  he  was 
in  possession ;  and  pleaded  the  same  in  bar  of  this  suit.  In 
his  answer,  he  said,  he  did  not  know  whether  Gardner  had 
knowledge  of  the  mortgage  to  JR.  B.  Brazier ;  and  that  he 
did  not  know  of  the  judgments.  That  the  plaintiffs  had 
knowledge  of  Gardner's  suit  long  prior  to  the  decree  or  sale, 
and  that  the  master  postponed  the  sale  at  their  request ;  and 
that  the  defendant  had  expended  229  dollars  and  60  cents 
in  repairs. 

It  was  proved,  that  the  defendant  Field  had  notice  of  the 
mortgage  to  Brazier,  before  he  bid  at  the  master's  sale ;  and 
that  the  master,  before  the  sale,  gave  public  notice  of  the 
existence  and  amount  of  the  junior  mortgage,  and  that  the 
sale  would  be  subject  to  the  same.  The  lot  was  worth  about 
7,000  dollars,  exclusive  of  improvements. 

*  Wells,  for  the  plaintiffs.  [  *  461  ] 

D.  B.  Ogden,  contra. 

The  cause  stood  ovei  for  consideration  until  this  day.  September  &. 

THE  CHANCELLOR.  After  an  attentive  examination  of 
the  cases,  and  of  the  course  and  practice  of  the  Court,  I  am 
satisfied  that  the  plea  must  be  overruled,  and  that  the  plain- 
tiffs, as  representatives  of  the  younger  mortgagee,  are  entitled 
to  redeem  against  Field,  the  purchaser. 

It  was  the  duty  of  Gardner  to  have  made  the  younger 
mortgagee  a  party  to  his  bill ;  and  all  encumbrancers  existing 
at  the  commencement  of  the  suit  are  entitled  to  be  parties, 
for  they  have  an  interest  to  be  affected,  and  ought  to  have 
an  opportunity  of  paying  off  the  prior  encumbrances.  The 
injustice  that  would  be  produced  if  they,  were  to  lose  their 
rights,  because  they  are  not  made  parties,  is  very  apparent. 
The  rule,  therefore,  has  been  well  settled,  and  uniformly 
supported,  that  the  subsequent  encumbrancers  must  be 
parties ;  and  if  omitted,  the  decree  will  not  bind  their  rights. 

355 


461  CASES  IN  CHANCERY. 


1818.  I"  this  case,  the  purchaser  had  notice,  at  and  prior  to  the 

^^-x^-^y  sale,  of  the  mortgage  of  the  plaintiffs,  and  of  their  claim, 

HAINES       and  the  lot  was  put  up  and  sold,  and,  no  doubt,  purchased 

BEACH.       by  ^e  defendant  Field,  subject  to  the  equitable  claim  of  the 

plaintiffs.     This    was  clearly  established  by  the  testimony  ; 

and  there  can  be  no  doubt  of  their  just  claim  in  this  case,  in 

opposition  to  the  plea. 

But  I  think  that  the  title  of  the  plaintiffs  to  redeem  would 
have  existed,  independent  of  the  fact  of  notice;  and  for  the 
better  understanding  of  this  point,  the  decisions  must  be 
examined. 

In  Draper  v.  The  Earl  of  Clarendon,  (2  Vern.  517.)  there 
was  a  bill  by  a  prior  against  a  subsequent  mortgagee  ;  and 
*  462  ]  the  Court  said,  that  the  defendant  must  redeem  *in  six  months, 
or  be  foreclosed  ;  and  it  being  objected,  that  some  intervening 
encumbrancers  were  not  parties,  it  was  answered  that  the 
plaintiff  might  "  foreclose  such  defendants  as  he  had  brought 
before  the  Court." 

This  decision  seems  to  admit  the  rule,  that  the  subsequent 
mortgagee  is  entitled,  and  must  have  the  opportunity  to  re- 
deem, and  that  the  encumbrancers  who  are  not  made  parties 
will  not  be  bound. 

The  next  case,  of  Godfrey  v.  ChadwelL  (2  Vern.  601.) 
was  a  suit  to  redeem,  brought  by  the  second  mortgagee 
against  the  first,  and  the  latter  put  in  a  demurrer,  and  also  a 
plea  of  a  decree  of  foreclosure  upon  his  mortgage,  without 
notice  of  the  second  mortgage,  and  the  plea  and  demurrer 
were  overruled. 

This  decision  settles  the  point  more  directly,  that  the  sub- 
sequent mortgagee  must  be  a  party  ;  that  he  is  not  bound,  if 
he  be  not  a  party,  and  that  his  rights  are  not  affected  by  the 
want  of  notice  of  them. 

In  Morret  v.  Westerne,  (2  Vern.  663.)  the  first  mortgagee 
had  a  decree  of  foreclosure,  and  then  subsequent  judgment 
creditors  filed  their  bill  against  him  to  redeem,  and  for  an 
account  of  rents  and  profits.  The  decree  of  foreclosure  was 
pleaded  in  bar  of  any  new  account,  and  notice  of  the  sub- 
sequent encumbrances  was  denied  ;  yet  the  plea  was  overruled. 

All  these  were  decisions  by  Lord  Chancellor  Cowper,  in 
the  beginning  of  the  last  century  ;  and  I  think  they  settle  the 
rule  decisively  in  favor  of  the  rights  of  the  junior  encum- 
brancer, whether  he  be  such  by  mortgage  or  by  judgment. 

The  same  doctrine  was  held  by  Lord  King,  in  Hobart  v. 
Abbott.  (2  P.  Wms.  643.)  A.  made  a  mortgage  of  a  term  to 
B.,  who  assigned  it  to  C.,  reserving  a  right  to  himself  to 
redeem  on  paying  a  certain  sum.  B.  dies,  and  C.  brings 
his.  bill  to  foreclose  against  A.,  without  making  the  repre- 
356 


CASES  IN  CHANCERY.  *46a 

sentatives  of  B.  parties ;  and  it  was  held  to  be  a  *plain  case        1818. 
of  a  want  of  proper  parties ;  for  B.  had  a  right  to  redeem.       -^^~^~^-> 

In  the  modern  case  of  Fell  v.  Brown,  (2  Bro.  276.)  there       HAI»KS 
was  a  bill  by  a  second  against  a  first  mortgagse  to  redeem  ;       BEACH 
but  as  the  heir  of  the  mortgagor,  who  was  dead,  was  absent, 
and  the  personal  representatives  not  before  the  Court,  Lord 
Thurlow  ruled,  that  there  was  a  want  of  parties,  and  that  the 
mortgagor,  or  his  heir,  must  be  a  party,  because  he  is  inter- 
ested in  taking  the  account,  and  that  the  natural  decree  was, 
that  the  second  mortgagee  redeem  the  first  mortgagee,  and 
that  the  mortgagor  redeem  him,  or  stand  foreclosed.     The  , 

same  rule  was  afterwards  laid  down  in  Palk  v.  Clinton,  (12 
Vescy,  48.  59.)  and  the  master  of  the  rolls  in  that  case 
avoided  the  general  question,  whether  it  was  necessary  to 
make  all  encumbrancers  parties,  and  only  decided  that  you 
could  not  agitate  the  question  of  redemption  as  between  two 
mortgagees,  without  making  the  mortgagor  a  party.  In  the 
case  of  The  Bishop  of  Winchester  v.  Beavor,  (3  Vesey,  314.) 
the  subject  was  fully  discussed.  That  was  a  bill  by  the  first 
mortgagee  against  the  mortgagor,  and  the  second  mortgagee, 
to  foreclose,  and  the  answer  of  the  mortgagor  stated  a.  judg- 
ment against  him,  between  the  first  and  second  mortgages. 
The  second  mortgagee  objected  at  the  hearing,  that  the  judg- 
ment creditor  was  not  a  party,  and  it  was  urged,  on  his  part, 
that  a  judgment  creditor  had  aright  to  come  to  foreclose,  as  a 
mortgagee ;  that  in  all  bills  of  this  kind  there  was  an  inter- 
rogatory, whether  there  were  any,  and  what  encumbrances,  and 
if  the  answer  stated  any,  the  practice  was  to  make  them 
parties ;  that  all  judgment  creditors  and  mortgagees  must  be 
parties,  because  interested  in  the  account  to  be  taken,  but 
that  judgments  confessed  by  the  mortgagor  pendente  lite 
would  not  be  regarded.  The  master  of  the  rolls  admitted, 
that  a  judgment  confessed  after  a  bill  filed,  would  not  create 
any  equity,  and  observed,  that  the  general  course  of  the  Court, 
*and  the  practice,  almost  without  exception,  had  been  to  [  *  464 
make  all  encumbrancers  parties,  for  they  had  a  right  to  re- 
deem ;  and  the  practice  was  founded  on  the  gross  injustice 
that  would  otherwise  ensue  in  allowing  the  mortgagor  to  re- 
deem his  equity,  when  a  subsequent  encumbrancer  was  en- 
titled to  it.  He  ordered  the  cause  to  stand  over  until  the 
judgment  creditor  was  made  a  party,  but  still  felt  unwilling 
to  lay  down  the  rule  absolutely,  that  the  Court  was  bound  to 
insist  upon  all  encumbrancers  being  parties. 

One  of  the  points  in  this  case,  on  which  Lord  Alvanley 
gave  an  opinion,  was  again  considered  and  established  in 
The  Bishop  of  Winchester  v.  Paine  (11  Vesey,  197,  198.) 
where  it  was  held  not  to  be  necessary,  on  a  bill  to  foreclose, 

357 


464  CASES  IN  CHANCERY. 

1818.  to  make  encumbrancers,  who  became  such  pendente  lite, 
parties.  But  this  very  case  strongly  implies,  that  all  othei 
encumbrancers,  not  within  that  exception,  must  be  parties. 

^ne  necessity  °f  making  the  subsequent  encumbrancers 
parties,  or  holding  their  rights  unimpaired,  appears  to  be 
much  stronger,  and  is  indispensable  to  justice,  in  cases  of 
decrees  for  sales,  according  to  our  practice ;  for  otherwise 
the  mortgagor  would  take  the  surplus  money,  or  the  cash 
value  of  the  equity  of  redemption,  and  defeat  entirely  the 
lien  of  the  subsequent  creditor.  But  their  rights  cannot  be 

%  destroyed  in  this  way,  and  the  purchaser  will  take  only  a  title 

as  against  the  parties  to  the  suit,  and  he  cannot  set  it  up 
against  the  subsisting  equity  of  those  encumbrancers  who  are 
not  parties.  This  is  the  necessary  doctrine  resulting  from 
the  cases  which  have  been  mentioned ;  and  that  of  Sherman 
v.  Cox  (3  Ch.  Rep.  46.)  is  still  more  in  point.  R.  mortgaged 
his  estate  to  S.,  and  then  to  P.,  and  then  to  the  plaintiff,  and 
then  to  B.,  who  buys  in  the  first  two  mortgages.  The  plain- 
tiff brings  his  bill  against  the  mortgagor  and  B.,  and  no  pro- 
ceedings were  had,  but  B.  had  notice  of  the  plaintiff's  title. 
Then,  B.  files  his  bill  against  the  mortgagor,  who  was  in  pos- 

[  *  435  ]  session.  He  *had  a  decree  and  an  account,  and  time  to  set 
the  mortgagor  to  redeem  or  be  barred.  The  time  expired, 
and  the  mortgagor  was  foreclosed  of  his  equity,  and  B.  then 
sold  his  right  to  the  defendant,  and  the  plaintiff,  who  had  not 
been  a  party  to  B.'s  bill  of  foreclosure,  brings  his  bill  to  re- 
deem, and  the  defendant  pleads  his  purchase  of  the  equity 
of  redemption,  which  had  been  barred.  The  question  was, 
whether  the  plaintiff,  who  was  no  party  to  the  bill  of  fore- 
closure, ought  to  be  let  in  to  redeem ;  and  Lord  Nottingham 
declared  it  was  a  question  of  election  between  one  inconve- 
nience and  another.  He  admitted  it  was  "extremely  mis- 
chievous" to  the  mortgagee  to  make  all  persons  parties  who 
had  interest,  but  that  he  would  be  finally  consoled  in  having 
his  principal,  interest,  and  costs.  But  he  said,  if  the  plaintiff 
should  not  be  relieved  in  that  case,  "  it  would  be  an  irrepara- 
ble loss  and  ruin,  and  he  thought  trouble  and  pains  less  pre- 
judicial than  ruin  and  total  loss."  So  he  overruled  the  plea, 
but  said  that  the  account  stated  should  stand,  unless  collusion 
was  shown. 

This  last  point,  as  to  the  account  not  being  opened,  had 
been  so  ruled  before,  in  Needier  v.  Deeble,  (1  Ch.  Cas.  299.) 
and  the  general  doctrine  established  in  this  case  appears  to  me 
to  be  well  founded,  and  to  have  been  handed  down  unimpaired 
to  this  day.  In  a  recent  case  before  the  House  of  Lords,  (  Gore 
v.  Stacpoole,  1  Doiv.  31.)  Lord  Eldon  said,  that,  in  order  to 
make  a  foreclosure  valid  against  all  claimants,  he  who  had 
358 


CASES  IN  CHANCERY. 


465 


1818 


HAIHES 


[  *  466  J 


the  first  estate  of  inheritance  must  be  brought  before  the 
Court,  and  that  the  intermediate  remainder-men  ought  to  be 
brought  before  the  Court,  to  give  them  an  opportunity  of 
paying  off  the  mortgage.  The  case  of  Mondey  v.  Mondey  (1 
Vesty  and  Bca.  223.)  shows  the  modern  practice  on  tne 
point.  That  was  a  bill  against  the  infant  heir  of  the  mort- 
gagor, and  against  prior  mortgagees,  praying  that  the  plain- 
tiff might  be  permitted  to  redeem  the  prior  mortgages,  and 
the  heir  decreed  to  redeem  the  whole,  and  that  such  of  *the 
defendants  as  were  subsequent  mortgagees,  might  redeem  the 
plaintiff,  or  that  the  property  be  sold,  and  the  money  applied 
to  discharge  the  encumbrances  according  to  priority,  and  the 
surplus,  if  any,  secured  to  the  infant  heir.  The  usual  refer- 
ence was  made  to  take  an  account  of  the  moneys  due  to  the 
several  encumbrancers,  and  to  ascertain  and  report  their  sev- 
eral priorities,  with  the  usual  directions  for  the  subsequent 
encumbrancers  to  redeem  the  prior,  in  the  usual  course,  &c. 
After  such  a  long  and  uniform  practice  of  the  Court,  making 
every  encumbrancer  existing  at  the  filing  of  the  bill  a  party, 
and  seeing  it  is  founded  on  such  weighty  reasons  of  justice, 
there  can  be  no  hesitation  as  to  the  right  of  the  plaintiffs  in 
the  present  case  to  redeem.  A  reference  must  accordingly 
be  had,  to  ascertain  the  amount  due  to  the  plaintiffs  upon 
their  bond  and  mortgage  ;  and  the  amount  of  the  debt  ascer- 
tained and  declared  in  the  decree  in  the  former  suit,  and  the 
value  of  the  permanent  and  useful  repairs  made  by  the  defend- 
ant Field  on  the  mortgaged  premises  since  his  purchase,  and 
prior  to  his  plea,  and  that  the  master  report,  &.c. 

Order  accordingly. 

[In  the  case  of  M'Kinst  ry  v.  Mervin  and  others,  the  plain-  Apriormon 
tiff  owned  a  bond  and  mortgage,  registered  the  13th  of  May,  ^ee'^vh"uh(]asi 
1815,  and  the  defendant  owned  a  bond  and  mortgage  upon  men't  against 
the  same  lands,  registered  the  14th  of  March,  1816,  and  the  ^bs^SeWn 
plaintiff  owned  a  judgment  against  the  mortgagor,  docketed  date  to  a  scc- 
llth  of  November,  1816,  and  under  which  he  had  sold,  and  °™j  ™£f&^ 
become  the  purchaser  of  the  mortgagor's  equity  of  redemp-  sale  of  the 
tion.  Under  these  circumstances,  the  plaintiff  filed  his  bill  ST'jSLSjj 
to  compel  the  defendant,  by  a  day  certain,  to  discharge  his  purchase!  the 
mortgage  and  judgment  debts,  or  *be  foreclosed.  The  de-  [*467  ] 
fendant,  in  his  answer,  offered  to  discharge  the  mortgage  equity  of  re- 
debt  of  the  plaintiff,  and  the  costs,  but  this  was  not  accepted.  notTon^WH 

The  case  being  submitted,  upon  the  bill  and  answer,  the  filed  asainst  the 
CHANCELLOR  (September  10th,  1818)  held,  that  the  lands  gee^on^dfhe 

second  mortga- 

gee to  pay  off  the  judgment  as  well  as  the  first  mortgage,  or  be  foreclosed.    The  encumbrances  are  tc 
be  paid  off  according  to  the  order  of  time  in  which  the  respective  liens  attached. 

359 


467  CASES  IN  CHANCERY. 

1818.  bound  by  the  encumbrances  in  the  pleadings  mentioned, 
N^^-N,— >w^  were  chargeable,  (1.)  for  the  mortgage  debt  of  the  plaintiff 
HAINES  (2.)  for  the  mortgage  debt  of  the  defendant,  (3.)  for  the 
BEACH  judgment  debt  of  the  plaintiff,  and  that  the  debts  were  to  be 
paid  according  to  the  order  of  time  in  which  the  respective 
liens  attached,  and  that  the  plaintiff  was  not  entitled  to  re- 
quire of  the  junior  mortgagee  to  pay  the  judgment  debt  before 
he  could  redeem.  It  was,  accordingly,  decreed,  that  it  be 
referred  to  a  master,  to  compute  the  amount  of  principal  and 
interest  due  on  the  first  mortgage,  and  that  the  defendant 
pay  the  same,  with  interest  and  costs,  in  six  months  from  the 
confirmation  of  the  report,  or  be  foreclosed.  The  six  months 
was  the  usual  allowance  in  such  cases  of  bills  for  a  strict 
foreclosure.  (1  Haddock's  Ch.  Rep.  287.  17  Vesey, 
382.  407.  Coopers  Eq.  Rep.  28.  2  De.ausseur's  S.  C, 
Rep.  144.)  [See  7  Paige  511.] 
360 


CASES  IN  CHANCERY  461 

1818. 

KlMBERLT 

KIMBERLY  against  SELLS  and  others.  SE!'LS 

[Explained,  9  Paige  626.] 

Inhere  there  is  a  general  demurrer  to  the  whole  bill,  filed  for  discovery 
and  relief,  and  the  plaintiff  is  entitled  to  an  answer  to  any  part  of  the 
bill,  the  demurrer  will  be  overruled. 

1  bonajide  purchaser,  in  possession  of  an  estate,  is  entitled  to  a  discovery 
of  the  grounds  on  which  his  title  is  sought  to  be  impeached  by  the 
defendants,  who  had  revived  a  judgment  against  the  person  from 
whom  the  plaintiff  derived  his  title,  and  which  he  alleged  had  been 
satisfied,  and  had  issued  execution,  under  which  the  sheriff  had  levied 
on  the  estate,  and  advertised  it  for  sale. 

BILL  stated,  that  John  Bedient  and  Walter  Hubbel,  who  June  zy  ana 
were  partners  in  trade,  owned  lots  38,  39,  and  42,  *in  Gold  Sep 
street,  in  the  city  of  New-York.  That  W.  H.  died  on  the  I- 
12th  of  September,  1803,  intestate,  seised  of  a  moiety  of  these 
lots,  leaving  a  widow  and  two  sons,  (defendants.)  That,  under 
proceedings  in  partition  in  the  Supreme  Court,  under  the  act 
relative  to  partition,  the  lots  were  sold  at  auction,  on  the  30th 
of  August,  1804,  and  John  Bedient  became  the  purchaser. 
That  J.  B.,  who  sued  for  the  partition,  .as  tenant  in  common 
of  a  moiety,  stated,  in  his  petition,  that  the  widow  had  her 
dower,  and  each  of  the  sons  one  fourth  of  the  lots.  The 
sale  was  made  by  commissioners  under  the  order  of  the 
Court,  and  was  confirmed  by  the  Court.  That  the  widow, 
on  the  3d  of  November,  1804,  released  her  dower.  That 
/.  B.,  being  so  seised  of  the  entire  fee,  on  the  9th  of  December, 
1805,  executed  a  mortgage  to  Ezekiel  Robins,  of  lot  No. 
38,  to  secure  the  payment  of  2,500  dollars ;  and  on  the  13th 
of  March,  1806,  executed  a  mortgage  to  Stephen  B.  Munn, 
of  lots  39  and  42,  to  secure  the  payment  of  4,000  dollars ; 
and,  afterwards,  on  the  8th  of  April,  1807,  sold  the  three 
lots  at  auction,  subject  to  the  mortgages,  to  Ezekiel  Robins, 
for  7,793  dollars.  That,  on  the  20th  of  June,  1807,  Ezekiel 
Robins  executed  a  mortgage  on  lots  39  and  42,  to  Rem 
Martense,  to  secure  the  payment  of  2,500  dollars,  and  on  the 
9th  of  December,  1807,  sold  and  conveyed  all  the  three  lots, 
for  6,300  dollars,  to  Timothy  Savage,  subject  to  the  mort 
rage  to  R.  Martense;  that  Savage  and  his  wife,  on  the  18th 
of  April,  1808,  mortgaged  part  of  the  premises  to  Stephen 
B.  Mann  and  three  other  persons,  to  secure  the  sum  of 
3,874  dollars  and  56  cents ;  and,  on  the  9th  of  September, 
1811,  sold  lot  No.  42  to  Wm.  Knapp,\vho  agreed  to  pay  half 
the  money  due  on  the  mortgage  from  Robins  to  Martense. 
That,  on  the  7th  of  March,  1815,  the  plaintiff  purchased  of 

Vox.  III.  46  361 


468 


CASES  IN  CHANCERY. 


1818. 
*-^~+* 

KlMBERLY 
V. 

SELLS. 

[  *  469  ] 


[*470] 


Savage  lots  38  and  39,  for  7,000  dollars,  subject  to  the  two 
mortgages,  and  the  plaintiff  paid  to  Munn,  who  had  become 
solely  interested  in  the  mortgage  to  him  and  others,  4,559 
dollars  and  93  cents,  and  took  an  assignment  *of  that  mort- 
gage; and  that,  on  the  19th  of  June,  1815,  John  Bedient  and 
his  wife  mortgaged  lot  42  to  the  plaintiff  for  1,000  dollars, 
and  the  mortgage  was  on  the  same  day  duly  registered.  That 
the  plaintiff,'  after  the  purchase,  took  possession  of  lots  38 
and  39,  and  remained  possessed  of  his  mortgage  on  lot  42. 

The  bill  further  stated,  that  John  Sells,  after  the  sale  of 
the  three  lots  to  Robins,  as  above  mentioned,  recovered  two 
judgments  against  John  Bcdient  for  partnership  debts ;  and 
not  obtaining  satisfaction  of  John  Bedient,  he  filed  a  bill 
against  the  widow  and  children  of  Hubbel,  and  Bedient,  and 
the  administrators  of  Hubbel,  to  have  his  debt  satisfied  out 
of  that  estate,  and  the  same  was  satisfied  out  of  the  estate 
of  Hubbel;  and  an  order  of  this  Court  was  obtained,  upon 
petition  of  the  representatives  of  Hubbel,  directing  the  two 
judgments  to  be  assigned  to  them.  That  these  judgments 
being  revived  by  scire  facias,  in  the  name  of  Sells,  adminis- 
trator of  Hubbel,  but  under  direction  of  the  widow  and  sons 
of  Hubbel,  and  Bedient  having  been  discharged  under  the 
insolvent  act,  these  representatives  and  his  assignees,  (defend- 
ants,) combining  to  injure  the  plaintiff,  and  impeach  his  title 
to  the  said  lots,  have  caused  writs  of  fieri  facias  to  be  issued 
at  law,  in  the  name  of  Sells,  on  the  judgments  so  revived, 
against  the  lands  whereof  .7.  Bedient  was  seised  the  9th  of 
May,  and  the  24th  of  October,  1807,  by  virtue  of  which  ex- 
ecutions, the  sheriff  had  levied  on  lots  39  and  42,  and  adver- 
tised them  for  sale ;  the  defendants  pretending  that  there  had 
been  paid  out  of  the  estate  of  W.  Hubbel  more  than  its  just 
proportion  of  the  partnership  debts,  and  that  the  whole  of 
what  had  been  so  paid  ought  to  be  refunded,  and  that  the 
lands  of  which  Bedient  was  seised  at  the  time  of  the  judg- 
ments, are,  notwithstanding  his  assignment  and*  discharge 
under  the  insolvent  act,  liable  to  contribute  a  moiety,  if  not 
the  whole  of  the  judgments  in  favor  of  Sells ;  that  Bedient  was 
seised  of  the  premises  at  the  time  of  the  judgments,  and  of 
his  ^discharge ;  and  that  the  sales  to  Robins  by  Bcdient  were 
fraudulent,  and  the  mortgages  to  Robins  and  Munn  also 
fraudulent,  or  were  kept  on  foot  by  fraud,  &c.  The  plain- 
tiff insisted  that  the  judgments  had  been  satisfied,  and  ought 
to  be  discharged,  and  not  to  be  made  use  of  by  the  repre- 
sentatives of  Hubbel.  That,  to  entitle  those  representatives 
to  any  recourse  upon  the  judgments,  they  ought,  by  an  ac- 
count to  be  taken  in  the  premises,  to  establish  a  balance  to  be 
due  from  Bedient  to  Hubbel;  and  that,  if  any  such  balance 
362 


CASES  IN  CHANCERY. 


470 


should  be  proved,  they  ought  to  look  to  Bedient  for  contri- 
bution of  his  proportion,  and  come  in  with  his  creditors  for  a 
ratable  proportion. 

The  bill  charged,  that  the  sale  to  Robins  was  bona  fide, 
and  for  a  valuable  consideration,  and  that  the  mortgages  were 
bona  fide ;  but  that  if  they  were  otherwise,  the  plaintiff  had 
no  knowledge  thereof,  and  was  a  bona  fide  purchaser,  without 
any  notice,  belief,  or  suspicion  of  fraud ;  and  that  his  title 
cannot,  therefore,  be  impeached. 

That,  although  the  plaintiff  is  advised  that  his  title  cannot 
be  defeated  by  the  threatened  sale  under  the  judgments,  yet 
it  may  involve  him  in  lawsuits,  and  greatly  impede  his  use 
and  disposition  of  the  property.  That,  being  a  bona  fide 
purchaser  without  notice,  he  is  entitled  to  a  discovery  of  the 
grounds  on  which  his  title  is  sought  to  be  impeached,  before 
such  sale  takes  place,  and  has  a  right  to  come  into  this  Court 
to  have  his  title  quieted  and  established.  Prayer,  accord 
ingly,  for  a  discovery  by  the  representatives  of  W.  H.,  for 
general  relief,  and  an  injunction.  The  injunction  was  issued 
the  29th  of  July,  1817. 

There  was  a  general  demurrer  to  the  bill,  by  the  repre- 
sentatives of  Hubbel. 

S.  Jones,  jun.,  for  the  plaintiff. 
Burr,  for  the  defendants. 

*THE  CHANCELLOR.  The  demurrer  in  this  case  is  general, 
and  goes  to  the  whole  bill.  If  )he  plaintiff  be  entitled,  either 
to  the  discovery  or  the  relief,  then  the  demurrer,  by  going  to 
the  whole  bill,  must  be  overruled,  for  if  void  in  part,  it  is 
void  in  toto.  The  doctrine  on  this  point  was  settled  in  the 
Court  of  Errors,  in  1798  and  1799.  (Le  Roy  v.  Veeder,  1 
Johns.  Cos.  423.  Laight  v.  Morgan,  1  Johns.  Cas.  429.) 

The  plaintiff  claims  and  possesses  certain  houses  and  lots, 
as  a  bona  fide  purchaser  and  mortgagee  for  a  valuable  con- 
sideration, without  notice  or  suspicion  of  any  defect  of  title, 
and  he  seeks  a  discovery  of  the  grounds  upon  which  some 
of  the  defendants  are  proceeding  to  sell  that  property,  by 
execution  at  law  against  John  Bedient.  This  claim  to  a  dis- 
covery rests  on  the  fact  of  his  being  such  a  purchaser,  in 
possession,  under  a  title  deduced  from  Bedient  prior  to  the 
judgments  upon  which  the  defendants  are  proceeding,  and 
that  Bedient  was  since  regularly  discharged  under  the  insol- 
vent act,  and  that  the  sale  intended  would  expose  him  to  ex- 
pense, and  injure  the  character  of  his  title. 

There  is  much  equity  in  the  call  upon  the  defendants  to 

363 


1818. 


Juste  29 


September  28 

[*471 


471  CASES  IN  CHANCERY. 

1318.  disclose  the  grounds  of  their  claim  ;  for,  if  they  are  permitted 
v.^-x,--^^/  to  sell  while  that  is  doubtful  and  unknown,  who  would  buy '( 
KiMBERLr  Probably,  no  person  would  be  induced  to  bid,  but  on  mere 
SELLS  speculation,  or  for  a  nominal  sum.  If  the  plaintiff  was  duly 
apprized  of  the  claim,  and  on  what  it  rested,  he  might  be 
induced  to  pay  the  demand  under  the  judgments,  in  order  to 
save  himself  from  total  loss.  But  neither  he,  nor  any  other 
person,  can  exercise  their  judgments  with  any  discretion  on 
the  subject,  so  long  as  this  new  claim  of  the  defendants  is 
not  known  or  understood.  The  discovery  seems  to  be  ne- 
cessary to  render  the  sale  beneficial  to  the  parties  concerned, 
and  to  prevent  injurious  speculations  upon  the  property. 
The  plaintiff  is  admitted,  by  the  demurrer,  to  be  an  innocent 
[  *  472  ]  purchaser,  *for  a  valuable  consideration,  without  notice ; 
and  he  has  pretensions  to  the  discovery  which  Bedient,  or 
any  party  to  the  original  transaction,  cannot  advance.  The 
question,  at  present,  is  not  on  the  trial  of  title.  It  is  only 
for  a  discovery  of  the  nature  and  grounds  of  that  title ;  and 
the  discovery  may,  perhaps,  satisfy  the  plaintiff'  of  its  good- 
ness and  validity,  or  it  may  present  a  case  of  legal  title  to  be 
tried  and  established  at  law,  before  relief  can  be  obtained  here. 

This  case  does  not  appear  to  come  within  those  decisions 
which  have  refused  such  a  discovery.  The  plaintiff  is  not  a 
mere  stranger,  seeking,  by  a  fishing  bill,  the  discovery  of 
another's  title,  nor  a  rival  claimant  standing  only  on  equal 
ground.  The  cases  of  Adderley  v.  Sparrow,  (Hil.  1779. 
Redesdale's  Tr.  154.)  and  of  Buden  v.  Dove,  (2  Pesey,  445.) 
are  very  briefly  reported,  without  any  detail  of  facts ;  and  they 
have,  probably,  no  application  to  the  special  circumstances 
of  this  case,  in  which  a  particular  equitable  claim  to  discovery 
is  shown  from  the  character  of  the  plaintiff,  as  a  bonafide 
purchaser  and  possessor,  and  the  proceeding  of  the  defend- 
ants in  attempting  to  sell  the  land  of  the  plaintiff  as  the  land 
of  another. 

The  case  of  Metcalf  v.  Harvey,  (1  Vesey,  248.)  fully  au- 
thorizes the  present  bill.  In  that  case,  the  bill  was  not  only 
that  there  might  be  an  interpleader,  but  also  a  discovery  of 
the  defendant's  title  to  the  possession  of  an  estate ;  and  it 
contained  a  prayer  for  an  injunction  to  stay  proceedings  in 
ejectment  on  the  part  of  the  defendant.  As  to  the  prayer  for 
the  injunction,  the  chancellor  observed,  that  "  The  question 
came  to  this,  whether  any  person  in  possession  of  an  estate 
as  tenant,  or  otherwise,  may  not  bring  a  bill  to  discover  the 
title  of  a  person  bringing  an  ejectment  against  him,  to  have 
it  set  out  and  seen  ;  and  he  was  of  opinion  he  might,  to  enable 
him  to  make  a  defence  in  ejectment."  In  that  case,  the  de- 
fendant demurred  to  the  whole  bill  for  discovery  as  well  as 
364 


CASES  IN  CHANCERY.  *17 

relief,  *e.nd  as  the  plaintiff  was  held  to  be  entitled  to  the  dis-        ISlS. 
oovery,  the  demurrer  was  overruled.  v^^v— ^, 

It  is  not  necessary,  at  present,  that  we  should  go  the  whole  KIMBERLT 
length  of  this  decision  ;  but  it  warrants,  and  more  than  war- 
rants,  the  bill  in  this  case.  So,  in  a  much  later  case,  (  Weller 
v.  Smeaton,  1  Cox,  102.)  the  bill  stated  the  plaintiff  to  be 
lessee  of  a  mill,  and  that  the  defendant  had  erected  works  on 
the  water  above,  which  obstructed  the  mill,  and  the  prayer 
was,  that  the  plaintiff  might  be  quieted  by  injunction.  There 
was  a  demurrer  to  the  relief,  but  the  case  states  that  "  a  full 
discovery  was  obtained." 

Without,  therefore,  giving  any  opinion,  at  present,  as  to 
the  relief,  I  conclude  that  the  plaintiff  is  entitled  to  an  answer 
to  the  bill,  and  the  demurrer  is,  consequently,  overruled. 

Demurrer  overruled. 

365 


473  CASES  IN  CHANCERY. 

1818. 

TRIPLER 

OLCOTT.          TRIPLER  and  others  against  OLCOTT  AND  LORD. 

Where  F.  made  a  bill  of  sale  of  a  ship,  then  on  her  voyage,  and  of  freight 
to  be  earned,  to  L.,  which  was  absolute  on  the  face  of  it,  and  L.  sent 
to  O.,  the  master  of  the  ship,  a  copy  of  the  bill  of  sale,  with  a  power  of 
attorney,  and  instructions  to  him  as  to  the  disposition  of  the  property, 
and  O.,  considering  L.  as  the  owner  from  that  time,  acted  as  his  agent, 
and  afterwards  accounted  to  him  for  the  proceeds  of  the  freight,  &c 
Held,  that  O.  was  not  accountable  to  F.  as  having  a  resulting  trust, 
though  some  of  the  letters  from  L.  to  O.  incidentally  mentioned  that 
the  bill  of  sale  was  intended  to  secure  C.  certain  advances  and 
responsibilities ;  there  being  no  fraud  or  collusion  between  L.  and  O. 

BILL  staled  that  Tripler  and  Craig,  plaintiffs,  were  part- 
i*  .ms  in  trade  in  the  city  of  New-  York ;  and  that  the  plaintiff 
Fanning  was  owner  of  the  ship  Zephyr,  of  the  value  of 
28,000  dollars,  then  on  a  voyage  from  New-York  to  Nantz, 
with  a  freight  to  be  earned,  amounting  to  31,000  ^dollars, 
and  being  indebted  to  the  defendant  Lord,  on  three  promis- 
sory notes,  amounting  to  2,569  dollars,  in  order  to  secure 
the  payment  of  the  same,  on  the  22d  of  December,  1812,  by 
deed,  assigned  the  said  ship  and  freight  to  the  defendant  Lord, 
on  the  express  agreement,  that  after  L.  was  paid  his  debt 
and  interest,  he  should  hold  the  ship  and  surplus  freight  to 
the  use  of  F.,  and  subject  to  his  order.  That  after  the  arrival 
of  the  ship  at  L*  Orient,  and  the  freight  had  been  earned,  F., 
being  indebted  to  the  plaintiffs  Tripler  and  Craig,  in  the 
sum  of  10,000  dollars,  on  the  10th  of  September,  1813,  as- 
signed to  them  the  ship  or  proceeds  thereof,  and  the  surplus 
freight,  after  paying  L.,  &c.  That,  relying  on  this  assign- 
ment, T.  &f  C.  had  assumed  to  pay  out  of  the  proceeds, 
remaining  over  and  above  their  debt,  a  debt  due  from  F.  to 
the  City  Bank,  amounting  to  6,000  dollars.  That,  soon  after 
this  last  assignment,  to  wit,  on  the  18th  of  December,  1813, 
F.  executed  another  assignment  to  T.  &/•  C.,  reciting  the 
former  assignment  of  the  10th  of  September,  the  objects  of 
which  had  been  executed,  and  that  T.  &/•  C.  had  been  paid 
the  10,000  dollars  by  F.,  and  that  they  had  since  lent  F. 
other  sums  of  money  ;  to  secure  the  payment  of  which,  and 
of  other  sums  to  be  lent  and  advanced,  F.  assigned  the  said 
ship  and  the  homeward  freight,  and  all  the  interest  of  F.  in 
the  same,  in  whose  hands  soever  the  same  might  be.  This  as- 
signment was  absolute,  with  the  usual  power  of  attorney. 
The  defendant  O.  was  master  of  the  ship  during  the  voyage, 
and  continued  to  be  master,  until  she  was  captured  on  hei 
366 


CASES  IN  CHANCERY.  474 

homeward  voyage.     That,  at  the  time  of  the  last  assignment,        1818. 
T.  fy  C.  had  paid  F.  1,200  dollars,  and  had  since  paid  him  -_^~s/~>^y 
1,400  dollars,  and  F.  now  owed  T.  fy   C.  2,800  dollars,  ex-      TRIPLER 
elusive  of  the  sum  due  the   City  Sank-     That  the  defendant      QLCOTT 
//.,  after  the  ship  arrived  in  France,  applied  to  F*.  for  direc- 
tions respecting  the  disposal  of  the  ship  and  freight ;  and  jp. 
instructed  L.  not  to  risk  any  part  of  them,  or  of  the  proceeds, 
upon  the  homeward  voyage,  unless  well  insured ;  and  that, 
on  the  9th  of  *  August,  1813,  F.  gave  directions  to  L.  to        [*475] 
•vrite  to  his  agents  in  France  to  that  effect,  and  L.  afterwards 
said  that  he  had  given  such  orders.     That  the  outward  freight 
was  paid  to  O.,  as  master,  and  agent  for  L.     That   O.  was 
employed  as  master,  by  F.,  as  sole  owner,  and  at  the  time  he 
received  the  homeward  freight,  he  knew  that  F.  was  interested 
therein.     That  Z/.  was  informed  of  the  two  last  assignments 
to  T.  fy  C.,  and  of  their  advances  and  responsibilities  for  F. ; 
but  had  given  such  orders  as  induced  O.  to  act  as  if  T.  ^ 
C.  had  no  interest  in  the  ship  and  freight.     That  O.  remitted 
14,000  dollars  of  the  outward  and  homeward  freight  to  L., 
in  bills  of  exchange  which  are  retained  as  due  to  L.  and  O. 
That  O.  sailed  from  France  to  New- York,  with  freight  and 
other  property  of  the  plaintiffs,  and  embarked  part  of  the  out- 
ward freight  in-  another  ship,  without  insurance ;   and  in  con- 
sequence of  capture,  the  security  of  the  plaintiffs  therein  has 
been  lost. 

The  plaintiffs  charged,  that  there  is  due  to  them,  out  of 
the  proceeds  of  ship  and  freight,  under  the  last  assignment, 
40,000  dollars.  That  O.  received  of  the  homeward  freight 
3,320  dollars  ;  that  if  the  freight  out  and  home  had  been 
insured,  as  it  might  have  been,  in  France,  the  plaintiffs  would 
have  been  entitled  to  25,000  dollars  ;  and  if  the  ship  had 
also  been  insured,  to  40,000  dollars.  That  the  defendants 
have  left  the  plaintiff  F.  charged  with  the  payment  of  a 
premium  of  insurance  on  the  outward  voyage,  of  11,000 
dollars,  the  greater  part  of  which  he  had  paid.  That  the 
defendant  O.  threatened  to  depart  out  of  the  state.  Prayer, 
that  the  defendant  O.  may  be  compelled  to  give  security  not 
to  depart  out  of  the  state,  and  that  the  defendants  may 
account,  &c.  The  plaintiff  made  affidavit,  that  there  would 
be  found  due  to  the  plaintiffs,  from  the  defendants,  on  a  set- 
tlement of  accounts,  20,000  dollars,  in  relation  to  the  freight, 
&c.  A  ne  exeat  was  granted  the  12th  of  December,  1814, 
marked  10,000  dollars. 

*Olcott,  in  his  answer,  admitted  that  jP.  was  owner  of  the       [  *  476  ] 
ship,  &c.     That  he,  O.,  took  command  of  her  on  the  12th 
of  November,  1812,  and  was  employed  by  F.  as  owner;  that 
he  acted  as  master  under  F.  until  after  his  arrival  in  France. 

367 


476  CASES  IN  CHANCERY. 

1818.       That,  on  the  25th  of  February,  1813,  he  received  a  le'tt. 

x-»«'-v-^_^  from  L.,  dated  the  23d  of  December,  1812,  enclosing  a  copy  ol 
TRIPLER  a  bill  of  sale  of  the  ship,  freight,  and  proceeds,  to  L. ;  and, 
OLCOTT  also,  a  power  of  attorney  from  L.  to  act  for  him.  That,  from 
that  time,  he  considered  L.  as  the  owner,  and  acted  as  agent  of 
L.  in  respect  to  the  ship,  freight,  and  proceeds,  and  in  con- 
formity to  the  letters  and  instructions  of  L.  That  the  pro- 
ceeds of  the  outward  freight  were  received  by  him  as  the 
agent  of  L.  And  he  insisted,  that  he  was  accountable  only 
to  L.  for  his  agency.  That  he  would  not  have  accepted  the 
agency,  distinct  from  his  office  as  master  of  the  ship,  had  he 
supposed  that  either  of  the  plaintiffs,  and  not  the  defendant 
L.,  was  interested  in  the  property.  That,  he  was  first  in- 
formed of  the  two  assignments  to  T.  ^-  C.  on  his  arrival  at 
New-York,  in  October,  1814.  That,  by  his  agreement  with 
F.}  he  acted  only  as  master ;  and  the  further  interest  and 
concern  of  jP.  were  intrusted  by  him  to  a  supercargo,  V. 
Sheldon,  who  acted  as  supercargo  arid  agent  of  F.  until  O. 
received  the  letters  of  L.,  with  the  bill  of  sale  and  power  of 
attorney,  with  instructions  as  to  the  proceeds  of  freight,  &c. 
The  defendant  O.  further  stated,  in  his  answer,  the  contents 
of  the  letters  of  L.,  of  the  23d  and  29th  of  December,  1812, 
and  20th  of  January,  1813,  and  of  his  instructions,  and  of 
all  the  transactions  by  him  as  agent.  That,  in  the  letter  of 
the  29th  of  December,  1812,  L.  stated  that  the  bill  of  sale 
was  on  account  of  the  failure  of  Fanning  and  Coles,  and  for 
the  purpose  of  paying  custom-house  bonds,  and  to  save 
friends.  That,  in  October,  1813,  he  received  a  letter  from 
.L.,  dated  the  16th  of  August.  1813,  saying,  that  he  took  the 
ship  and  freight  as  security  for  about  6,000  dollars,  and  to 

[  *  477  ]  cover  a  demand  of  Carey  *of  about  1500  dollars,  and  feared 
he  should  lose  all,  unless  the  property  was  insured  in  France. 
That,  in  October,  1814,  the  defendant  and  L.  rendered  to 
each  other  their  respective  accounts  of  all  their  transactions 
and  concerns,  on  which  there  was  a  balance  due  to  the  de- 
fendant O.  of  1,028  dollars  and  86  cents. 

Evidence  was  taken  in  the  cause,  which  was  brought  to  a 
hearing,  as  to  the  defendant  O.,  in  June  last. 

June  22  and  23.       Riggs  and  Baldwin,  for  the  plaintiffs. 

T.  A.  Emmet  and  Wells,  for  the  defendants. 

September  28.  THE  CHANCELLOR.  This  case  was  brought  to  a  hearing 
on  the  part  of  the  defendant  Olcott,  and  we  are  only  to 
discuss  the  case  as  it  regards  him. 

Two  of  the  plaintiffs  (Tripler  and  Craig)  have  not  shown 
368 


CASES  IN  CHANCERY.  477 

any  right  or  title  whatever  to  an  account,  for  they  have  not        1818. 
proved  the  assignment  charged  in  the  bill  to  have  been  made  v^^-v^-^.  • 
by  Fanning  to  them  on  the  18th  of  December,  1813.     This      TRIPLE* 
assignment  is  the  only  foundation  of  their  claim,  and  it  is  not       OLCOTT 
admitted  by  the  answer.     We  must  recur  to  the  resulting 
trust  of  Fanning,  as  the  only  existing  right  shown  on  the 
part  of  the  plaintiffs. 

The  bill  of  sale  from  Fanning  to  Lord  was  absolute  upon 
its  face,  and  no  resulting  trust  appears.  Nor  is  there  proof 
of  the  express  agreement  charged  in  the  bill.  The  evidence, 
that  the  bill  of  sale  was  intended  to  be  qualified,  and  not 
absolute,  appears  from  the  two  letters  of  Lord  to  Olcott,  of 
the  29th  of  December.  1812,  and  the  16th  of  August,  1813. 
In  the  one,  he  says,  that  the  bill  of  sale  arose  from  the  failure 
of  Fanning  and  others,  and  was  for  the  purpose  of  paying 
custom-house  bonds,  and  to  save  friends  ;  and  in  the  other 
he  states,  that  he  took  the  ship  and  freight  as  security  for 
about  6,000  dollars,  and  to  cover  a  demand  of  one  Carey  for 
1,500  dollars.  These  were  ^representations  entirely  contrary  [  *  478  ] 
to  the  statement  in  the  bill  of  the  agreement  between  Fanning 
and  Lord,  made  on  the  delivery  of  the  bill  of  sale.  Nor  do 
the  two  accounts  given  in  the  letters  correspond  with  each 
other,  and  they  were  mentioned  to  Olcott  rather  incidentally, 
and  without  any  full,  precise,  and  satisfactory  explanation 
of  the  trust.  They  were  not  intended  to  form  any  rule  or 
guide  to  Olcott's  conduct,  and  he  could  only  look  to  Lord 
as  the  owner.  The  authentic  evidence  which  he  had  of  any 
right  or  title  in  the  property,  was  the  bill  of  sale  and  the 
letter  of  attorney ;  and  he  could  not,  and  did  not,  recognize 
any  other  title,  interest,  or  authority.  A  resulting  trust, 
mentioned  in  this  incidental  and  obscure  manner,  and  es- 
pecially when  attended  with  the  clear  title  and  positive  acts 
and  instructions  of  Lord  as  owner,  did  not,  probably,  attract 
any  attention  from  Olcott;  and  he  says,  in  his  answer,  that 
he  considered  Lord  as  the  sole  owner,  and  as  having  the 
exclusive  interest,  and  that  he  would  not  have  accepted  of 
any  agency  for  any  other  person,  distinct  from  that  of  master 
of  the  ship. 

On  his  return  to  the  United  States,  in  October,  1814,  he 
duly  accounts  to  and  with  Lord ;  and  the  question  is,  whether 
he  is  bound  to  account  also  to  Fanning. 

It  does  not  appear  to  me,  that  Olcott  could,  with  safety 
or  propriety,  have  dealt  with  any  other  person  than  Lord. 
He  had  no  business  or  concern  with  the  dealings  between 
Lord  and  Fanning,  and  the  loose  hints  communicated  to  him 
by  Lord  were  of  no  use.  It  would  be  equally  dangerous 
and  inconvenient,  in  the  business  and  affairs  of  the  world,  to 

VOL    III  47  369 


478  CASES  IN  CHANCERY. 

1818.       deny,  that  Olcott  could  not  definitively  and  safely  account 
Vs^-s^^x  with  Lord,  under  the  circumstances  of  this  case.     If  there 
TRIPLER      had  been  fraud  and  collusion  charged  and  proved  between 
OLCOTT.       n*m  an(^  Lord,  in   the  settlement,   to  the   prejudice  of  the 
known  rights  of  others,  it  would  have  presented  a  very  dif- 
ferent question.     But  no   such  allegation   or  proof  exists; 
[  *  479  ]       Fanning  must  look  to  Lord,  and  cannot  look  beyond  *him, 
for  an  account  of  the  management  and   proceeds  of  the 
property  Assigned  to  him  in  trust. 

It  is  stated  to  have  been  held  in  Pollard  v.  Doivnes,  (2  Ch. 
Cas.  121.)  that  where  a  trustee  made  a  letter  of  attorney  to 
»!?.  to  manage  and  receive  the  rents  and  profits  of  land,  and 
*S".  afterwards  accounted  to  the  trustee  for  his  agency,  he  was, 
after  the  death  of  the  trustee,  and  on  a  bill  by  the  cestuy  que 
trust,  directed  to  account  to  him. 

That  case  is  so  destitute  of  all  facts  and  circumstances 
requisite  to  a  clear  understanding  of  the  principle  and  the 
application,  that  it  can  scarcely  be  regarded  as  an  authority. 
It  may  be,  that  there  was  a  collusion  between  the  trustee 
and  the  agent,  or  that  the  agent  had  notice  from  the  principal 
not  to  account  with  the  trustee,  or  that  the  trust  had  expired 
at  the  time.  It  is  impossible  to  be  maintained,  that  if  an 
agent  duly  and  fairly  accounts  with  his  immediate  and  au- 
thorized principal,  that  he  is  bound,  in  all  cases,  to  account 
over  again  to  the  person  standing  behind  his  immediate  prin- 
cipal. This  would  be  a  doctrine  not  to  be  endured  ;  there 
must  have  been  something  in  the  case  cited  which  does  not 
now  appear,  and  which  gave  it  a  special  direction.  Lord 
Eldon,  in  Beaumont  v.  Boultbee,  (7  Vesey,  605.  610.  617.) 
laid  down  this  rule,  that  an  account  settled  between  an  under 
and  an  upper  agent,  without  vouchers,  and  upon  mere  con- 
fidence, was  not  to  be  considered  as  settled  against  the 
principal,  without  allowing  him  the  liberty  to  surcharge  and 
falsify  those  accounts.  But,  in  that  case,  it  appeared  that 
the  under  steward  (as  he  was  termed)  was  employed  both 
by  the  upper  steward  and  the  principal,  and  the  liberty  given 
to  the  principal  went  no  farther  than  to  surcharge  and  falsify ; 
and  that  was  founded  on  the  extraordinary  and  unusual 
mode  of  accounting  which  had  been  adopted  in  that  case. 
Under  such  checks  and  limitations,  there  can  be  no  doubt 
that  the  party  ought  to  account  again  to  the  person  who  has 
the  ultimate  interest.  But  when  no  special  circumstances 
[  *  480  ]  *appear,  and  there  is  no  fraud,  then  I  apprehend  the  gen- 
eral rule  to  be  otherwise,  and  that  it  was  truly  declared  in 
Clavering's  case.  (Prec.  in  Ch.  535.) 

The  plaintiff  in  that  case  was  entitled  to  several  collieries 
of  value,  and  his  guardians  or  trustees,  during  his  minority, 
370 


CASES  IN  CHANCERY.  4SO 

had  appointed  the  defendant  an  agent  to  manage  the  same,        1S18. 
with  a  salary  which  they  had  increased  as  they  saw  occasion,  x^^-v^-^,^ 
He  passed  his  accounts  regularly  with  the  trustees  or  guar-      TRIPLER 
dians,  every  half  year;  and  they,  from  time  to  time,  passed      OI/OTT 
and  allowed  those  accounts.     The  plaintiff,  being  of  age,  filed 
his  bill,  not  only  against  the  trustees  or  guardians,  but  the 
agent,  to  have  a  general  account.     The  agent  pleaded  the 
accounts  themselves,  and  the  plea  was  held  good,  for  he  was 
but  a  servant  to  the  trustees ;  and  as  they  had  authority  to 
employ  him,  they  had  the  same  to  discharge  him  and  allow 
his  accounts,  and  he  had  nothing  at  all  to  do  with  the  plain- 
tiff ;  that  if  it  were  otherwise,  none  would  ever  be  concerned 
in  an  infant's  affairs,  and  the  plaintiff  would  suffer  no  sort 
of  mischief  by  it ;  for  he  was  at  full  liberty  to  go  through 
the  whole  account  against  the  guardians  or  trustees,  and  they 
were  only  and  immediately  responsible  to  him,  and  would  be 
so  for 'the  embezzlements  of  the  servants  they  employed. 

In  the  cases  referred  to,  the  character  of  the  trustee,  and 
the  relationship  between  him  and  the  principal,  were,  no 
doubt,  distinctly  known  and  declared.  But  in  the  present 
case,  Fanning  had  clothed  Lord  with  the  absolute  legal  title, 
and  held  him  out  to  the  world,  and  suffered  him  to  deal  with 
others,  as  the  real  and  absolute  owner.  Upon  every  just  and 
safe  principle,  the  settlement  between  Olcott  and  Lord  ought 
to  be  absolute ;  it  ought  not  to  be  opened  by  Fanning;  nor 
the  defendant  Olcott  called  on  to  account  de  novo  with  him, 
except  upon  the  ground  of  fraud  and  collusion ;  and  that  is 
not  the  ground  taken  in  this  case. 

*I  am,  accordingly,  of  opinion,  that  the  bill,  as  to  the  de-       [  *481  ] 
fendant  Olcott,  be  dismissed,  with  costs. 

Bill  dismissed,  accordingly. 

371 


481  CASES  IN  CHANCERY. 

1818. 

READE 

LIVINGSTON.  READE,  Administrator  of  READE,  against  LIVINGSTON 

and  others. 

[Affirmed.  4  Johns.  Ch.  450.    Applied,  5  Cow.  67;  10  W.  Va.  98.    Criticised.  8  Cow.  406; 
8  Edw.  61,  62;  2  Paige  58.    Overruled,  24  N.  Y.  623.    See  2  Edw.  201;  8  Paige  164;  11 

Id.  594.] 

A  settlement  after  marriage,  in  pursuance  of  a  parol  agreement  entered 
into  before  marriage,  is  not  valid  ;  aliter,  if  made  in  pursuance  of  a 
written  agreement  prior  to  the  marriage. 

Though  a  settlement  after  marriage  recites  a  parol  agreement  entered  into 
before  marriage,  it  seems,  that  it  is  not,  therefore,  valid  against 
creditors. 

A  voluntary  settlement,  after  marriage,  by  a  person  indebted  at  the 
time,  is  fraudulent  and  void  against  all  such  antecedent  creditors ; 
and  that  without  regard  to  the  amount  of  the  existing  debts,  or  the 
extent  of  the  property  settled,  or  the  circumstances  of  the  party. 

But,  with  regard  to  debts,  arising  subsequent  to  the  settlement,  it  seems, 
that  the  presumption  of  fraud,  arising  in  law  from  the  party  being 
indebted  at  the  time,  may  be  repelled  by  circumstances ;  as,  that 
the  antecedent  debts  were  secured  by  mortgage,  or  were  provided  for 
in  the  settlement. 

And  if  the  presumption  of  fraud  is  not  so  repelled,  it  seems,  that  subse- 
quent creditors  may  impeach  the  settlement,  by  showing  antecedent 
debts  sufficient  in  amount  to  afford,  reasonable  evidence  of  a  fraudu- 
lent intent ;  for,  as  on  the  one  hand,  showing  an  antecedent  debt, 
however  small  or  trifling,  is  not  sufficient  to  make  the  settlement 
fraudulent  and  void,  so,  on  the  other,  the  subsequent  creditor,  to  im- 
peach it,  is  not  obliged  to  prove  that  the  party  was  absolutely  insolvent 
at  the  time. 

June  16,  17,  IN  1800,  H.  G.  Livingston  was  indebted  to  the  intestate, 
j)nd  who  brought  an  action  against  H.  G.  L.,  and  recovered  a 
judgment  in  the  Supreme  Court,  for  6,000  dollars  and  42 
cents,  debt,  and  92  dollars  and  50  cents,  costs,  which  was 
docketed  the  7th  of  August,  1807.  During  this  time,  as 
the  plaintiff  alleged,  H.  G.  L.  owned  real  property  to  the 
value  of  above  40,000  dollars ;  but  his  personal  estate  was 
insufficient  to  pay  this  debt.  On  the  7th  of  December, 
482  ]  *1805,  H.  G.  L.  executed  a  deed  to  G.  Aspinwall,  defend- 
ant, (for  the  consideration  of  5,000  dollars,  expressed.)  of 
certain  lands,  being  5,483  acres  in  the  county  of  Ontario,  a 
lot  of  land  in  the  city  of  New-York,  and  a  farm  in  Dutchess 
County,  IN  TRUST,  to  convey  the  same  to  such  persons  and 
for  such  uses,  and  in  such  manner,  as  Ann,  his  wife,  by  any 
act  or  deed  in  writing,  or  by  will,  should  direct  and  appoint ; 
and  in  default  thereof,  then  in  trust  for  her  heirs,  to  be  con- 
veyed to  them  by  the  trustee  ;  and  in  trust,  that  the  said  Ann  . 
should  be  permitted  to  take  and  receive  the  rents  and  profits 
to  her  separate  use,  and  her  separate  receipt  to  be  a  sufficient 
discharge,  &c. ;  which  deed  the  plaintiff  alleged  to  be  vol- 
379 


CASES  IN  CHANCERY.  482 

untary  and  fraudulent,  and  made  with  a  view  to  defeat  the        1818. 
ntestate  and  other  creditors.  \~*r~^s-*+-/ 

The  trustee,  afterwards,  conveyed  part  of  the  lands  to       REAI.E 
bona  fide  purchasers,  the   proceeds  of  which  had  been  re-    L,V,NVQSTOH 
ceived  by  the  wife,  or  cestuy  que  trust;  and   the  plaintiff 
alleged,  that  the  residue  remaining  in  the  trustee,  was  worth 
above   40,000   dollars;    that,   on    the    12th    of  July,   1809, 
IL  G.  L.  paid  part  of  the  debt  due  to  the  intestate,  but  that 
there  now  remained  due  on  the  judgment,  3,072  dollars,  and 
there  was  no  visible  property  of  H.  G.  L.  out  of  which  the 
same  could  be  paid  or  satisfied,  except  the  lands  so  held  by 
6r.  A.,  in  trust,  and  that  the  wife  refused  to  direct  the  pay 
ment  out  of  those  lands.     The  bill,  which  was  filed  the  29th 
of  January,  1816,  prayed,  that  G.  A.  might  be  directed  to 
sell  and  convey  so  much  of  the  land,  undisposed  of,  as  might 
be  sufficient  to  pay  the  balance  due  the  intestate,  and  for 
other  relief,  &c. 

The  defendants,  H.  G.  L.  and  his  wife,  in  their  answer, 
admitted,  that,  in  1800,  there  were  unsettled  accounts  be- 
tween him  and  the  intestate,  which,  by  a  rule  of  the  Supreme 
Court,  were  referred  to  referees,  who,  in  August  term,  1807, 
reported  the  sum  of  6000  dollars  and  42  cents,  due  to  the 
intestate,  for  which  judgment  was  rendered  *in  his  favor,  [  *  483  \ 
with  costs.  That  //.  G.  L.  was  seized  of  the  lands  men- 
tioned in  the  bill  at  the  time  of  the  judgment,  but  not  before 
he  became  so  indebted  to  the  intestate,  particularly  as  to  the 
lands  in  Ontario,  which  were  unimproved.  He  denied  that 
the  lands  mentioned  in  the  bill  were  worth  near  the  sum  of 
40,000  dollars,  but  admitted  that  the  lands  mentioned  in  the 
deed  of  trust  comprised  the  greatest  part  of  his  real  estate. 
He  stated,  that  when  he  executed  the  deed,  he  was  actually 
worth  40,000  dollars,  and  that  his  debts  did  not  amount  to 
10,000  Collars ;  and  he  denied  that  the  deed  was  executed 
with  any  fiaudulent  intent.  He  alleged,  that  prior  to,  and 
in  contemplation  of  his  marriage,  and  in  consideration  of 
such  marriage,  he  agreed  with  V.  N.,  the  father  of  his  wife, 
that,  in  case  of  the  marriage,  he  would  settle  upon  her  and 
her  children  30,000  dollars  ;  that  he  was  then  worth  80,000 
dollars ;  and  that,  afterwards,  at  the  particular  instance  of 
V.  N.,  and  in  compliance  with  his  agreement,  he  executed 
the  deed.  He  admitted  the  balance  due  to  the  plaintiff,  as 
charged.  He  stated,  that  for  several  years  after  the  judg- 
ment, he  resided  at  Harlaem,  and  had  horses  and  carriages 
and  a  well-furnished  house,  and  that  the  plaintiff  might  have 
obtained  satisfaction  out  of  his  personal  property.  That  he 
is  now  worth  but  little,  having  been  confined  to  his  bed  for 
Iht  last  ten  years,  and  expended  nearly  all  his  estate ;  that 

373 


183  CASES  IN  CHANCERY. 

1818.       tne  lands  conveyed  in  trust  have  not  produced  sufficient  to 

,^-v^^x  defray  the  ordinary  expenses  of  his  wife  and  five  children. 

READE       The  wife,  in  her  answer,  insisted,  that  as  her  whole  life  had 

LIVINGSTON.    fa^en  a  sacrifice  to  the  unfortunate  condition  of  her  husband, 

and  having  five  children  to  support  and  educate,  the  deed 

could  not  be  considered  as  made  with  any  fraudulent  intent ; 

and  that  it  was  the  delay  of  the  plaintiff  in  enforcing  the 

payment  of  his  debt,  that  had  caused  the  injury  of  which  he 

complained. 

|  *  484  ]  *It  was  proved  that,  in  1794,  H.  G.  L.  owned  a  farm  al 

Red  Hook,  which  he  bought  of  the  intestate  for  10,000  dol- 
lars, and  which  he  afterwards  sold  to  E.  Kane,  for  1 ,000  dol- 
lars in  cash,  and  about  7,000  acres  of  new  land,  at  two  dollars 
per  acre,  part  of  which  lands  were  comprised  in  the  deed  of 
trust.  That,  previous  to  1807,  H.  G.  L.  built  a  house  at 
Harlaem,  on  the  land  of  V.  N.,  which  cost  about  8,000  dol- 
lars, which  was  afterwards  sold,  and  the  money  paid  to  V. 
N.,  on  account  of  the  debts  of  H.  G.  L. 

V.  Nutter  stated,  that  his  daughter  was  about  16  years  of 
age,  in  1791,  when  she  married  H.  G.  L.,  who  was  then  sup 
posed  to  be  affluent ;  that  just  before  the  marriage,  the  wife 
of  the  witness  informed  him  that  H.  G.  L.  had  promised,  if 
they  would  consent  to  the  marriage,  to  settle  30,000  dollars  on 
their  daughter,  after  the  marriage.  That  the  witness  after- 
wards reminded  H.  G.  L.  of  his  promise,  who  answered  the 
witness  that  he  need  not  be  uneasy,  that  he  had  made  such 
a  promise,  and  intended  to  fulfil  it.  Another  witness  also 
proved  the  admission  by  H.  G.  L.  of  his  having  made  the 
promise  of  settlement  on  his  wife.  That  H.  G.  L.,  who  died 
in  the  summer  of  1817,  was  bed-ridden  and  helpless  during 
the  last  ten  years  of  his  life.  That,  in  1807,  his  personal 
property  was  not  worth  more  than  1 ,000  dollars,  and  he  pos- 
sessed no  real  estate  free  from  encumbrance. 

It  appeared  that  the  debt  due  the  intestate  originated  in  two 
bonds  dated  October  31st,  1794,  one  for  1,000  pounds,  and 
the  other  for  1,510/.  17s.  4rf.,  and  which  were  given  for  the 
farm  at  Red  Hook,  purchased  by  H.  G.  L.  of  the  intestate. 

June  ic,  17,       P.  Ruggles,  for  the  plaintiff. 

and  18. 

T.  A.  Emmet,  and  M.  &  WiTkins,  for  the  defendants. 

[  *  485  ]  *The  cause  stood  over  for  consideration  ;  and  the  follow- 

September  28.   ing  opinion  was,  this  day,  delivered  by  the  Court. 

THE  CHANCELLOR.  This  case  turns  upon  the  validity  of 
374 


CASES  IN  CHANCERY.  485 

the  conveyance  by  Henry  G.  Livingston  to   Gilbert  Aspin-        1818 
wall.  ^*~^"*»^ 

The  bill  charges,  that  Livingston  was  indebted  to  John       READE 
Reade,  the  plaintiff's  intestate,  as  early  as  the  year  1SOO,  in  v- 

6,000  dollars,  and  that,  in  August  term,  1807,  Reade  obtained 
a  judgment  against  H.  G.  L.,  for  upwards  of  that  sum,  and 
that  3,072  dollars  of  it  remains  unpaid.  That  by  deed,  dated 
the  7th  of  December,  1805,  H.  G.  L.  conveyed  his  lands,  to 
the  amount  in  value  of  45,000  dollars,  to  Aspinwall,  in  trust 
for  his  wife,  and  that  he  had  no  other  property  to  satisfy  the 
balance  of  the  judgment. 

The  answer  of  H.  G.  L.,  and  of  his  wife,  admitted  that, 
in  1800,  there  were  sundry  unsettled  accounts  between  the 
parties,  and  that  they  were  finally,  by  rule  of  Court,  referred 
to  referees,  and  that  the  judgment  upon  such  reference  was 
rendered,  as  charged  in  the  bill ;  they  admit  further,  that  the 
lands  included  in  the  deed  to  Aspinwall,  composed  the 
greater  part  of  the  real  estate  of  H.  G.  L.,  though  they  deny 
the  lands  to  be  of  the  value  charged.  H.  G.  L.  states  that, 
prior  to  his  marriage,  and  with  a  view  to  it,  he  agreed  with 
his  wife's  father  to  settle  on  her,  and  her  children,  30,000 
dollars,  and  that  the  deed  was  executed  in  pursuance  of  that 
agreement.  He  -admits  the  sum  of  1,392  dollars  and  92 
cents  to  be  still  due  upon  the  judgment,  and  that  Reade 
might  have  obtained  satisfaction  out  of  his  personal  estate ; 
and  he  declares,  that  he  was  then  worth  little  or  no  property, 
though,  at  the  time  of  his  marriage,  he  was  worth  80,000 
dollars. 

It  appears,  by  the  proof  taken  in  the  cause,  that  the  judg- 
ment was  founded  upon  two  bonds  dated  in  the  year  1794 ; 
that  the  consideration  of  them  was  a  farm  sold  by  Reade  to 
H.  G.  L.,  and  that  with  the  proceeds,  or  *by  the  exchange  *  486  ] 
of  that  farm,  H.  G.  L.  procured  the  greater  part  of  the  lands 
included  in  the  deed  of  settlement.  That  he  was  married  as 
early  as  the  year  1791,  and  that  at  the  date  of  the  judgment 
he  owned  personal  property  to  1,000  dollars ;  but  it  does  not 
appear  that  he  possessed  any  real  property  free  from  encum- 
brance. Valentine  Nutter,  the  wife's  father,  says,  that  his 
wife,  Mrs.  Nutter,  informed  him,  just  previous  to  the  marriage, 
that  H.  G.  L.  had  promised  to  settle  30,000  dollars  on  his 
daughter,  and  that  H.  G.  L.  frequently,  after  the  marriage, 
had  admitted  the  promise,  and  at  last,  at  the  repeated  request 
of  the  witness,  executed  the  deed. 

The  deed  to  Aspinwall  contains  no  reference  to,  or  recital 
of,  any  previous  agreement ;  but  it  is  simply  a  deed  in  fee,  for 
the  consideration  of  5,000  dollars,  and  in  trust  to  convey  the 
lands,  and  the  rents  and  profits  thereof,  as  the  wife  of  H.  G. 

375 


486  CASES  FN  CHANCERY. 

1818.       L.,  by  deed  or  will,  should  direct;  and,  in  default  of  such 
v^^-s,^^/  direction,  in  trust  for  her  heirs. 

READE  I  have  stated,  perhaps,  as  much  of  the  pleadings  and  proofs 

LIVINGSTON.    as  mav  De  requisite  to  a  full  understanding  and  discussion  of 
the  important  legal  questions  involved  in  the  case. 

H.  G.  L.  owed  the  very  debt  now  in  question,  at  the  time 
of  the  settlement  of  his  real  estate  upon  his  wife;  and  a 
great  part  of  the  lands  so  settled  were  purchased  with  prop- 
erty procured  by  that  same  debt.  The  deed  of  settlement 
was  not  made  until  1 4  years  after  the  marriage,  when  it  is 
admitted,  that,  in  the  mean  time,  his  estate  had  diminished 
one  half.  It  had  no  reference  or  allusion  to  any  ante-nup- 
tial contract,  nor  is  there  any  evidence  in  writing  of  such  an 
agreement. 

Upon  such  a  state  of  facts,  my  earliest  impressions  were 
against  the  soundness  of  the  defence ;  and  I  apprehend,  there 
is  not  a  case  to  be  met  with  that  gives  any  colorable  support 
to  such  a  settlement  against  such  a  creditor.  But  after  the 
[  *  487  ]  elaborate  argument  which  has  been  made  in  favor  *of  the  deed, 
I  have  considered  it  due  to  the  counsel,  as  well  as  to  the  im- 
portance of  every  question  of  this  nature,  to  look  into  the 
cases,  and  to  give  to  every  topic  of  argument  a  careful  in- 
vestigation. 

The  settlement  was  a  voluntary  one.  There  was  no 
portion  advanced  by,  or  on  behalf  of  the  wife,  nor  was  it 
founded  on  any  ante-nuptial  contract  duly  ascertained,  or  on 
any  other  valuable  consideration.  The  only  attempt  at  any 
support  of  that  kind,  is  the  parol  promise  stated  in  the  an- 
swer of  H.  G.  L.  to  have  been  made  by  him  previous  to  his 
marriage,  and  which  is  mentioned  also  by  some  of  the  wit- 
nesses. There  are  several  reasons  why  I  think  the  settlement 
cannot  derive  any  aid  from  that  parol  agreement. 

The  proof  of  the  agreement  consists  only  of  parol  decla- 
rations and  confessions  of  H.  G.  L.,  made  after  his  marriage. 
All  that  Mr.  Nutter  knows  beyond  those  confessions,  is  from 
information  given  to  him  by  his  wife.  We  have  no  proof  in 
writing,  or  from  any  person  present,  of  any  agreement  made 
prior  to  the  marriage,  and  in  consideration  of  it.  The  proof, 
such  as  it  is,  is  extremely  loose.  The  answer  of  H.  G.  L. 
states,  that  he  agreed,  prior  to  the  marriage,  with  his  wife's 
father,  to  settle  on  her  and  her  children  30.000  dollars ;  but 
Mr.  Nutter  does  not  pretend  that  any  such  agreement  was 
made  with  him.  The  agreement,  as  the  answer  states,  was 
also  to  settle  that  sum  on  the  wife  and  her  children ;  whereas 
the  deed  gives  the  entire  and  absolute  disposal  of  it  to  the 
wife.  The  amount  was  to  be  30,000  dollars ;  whereas  the 
deed  was  of  a  large  quantity  of  land,  being  the  greater  part 
376 


CASES  IN  CHANCERY.  437 

of  his  real  estate,  without  any  certain  defined  value  ;  and  he        1818. 

only  denies  its  value  to  be  40,000  dollars.     The  settlement  «s^-^-*^x 

and  the  agreement  do  not,  therefore,  correspond  with  any       READE 

precision,  and  hot  being  made  until  fourteen  years  after  the    LlvINg'STOM 

marriage,  and  having  no  allusion  to  it,   every  intendment 

in  favor  of  the  settlement   as  being  the  performance  of  a 

*prior  agreement  seems  to  fail.     In  Lavender  v.  Blackstone,       [  *  488  ] 

(2  Lev.  146.     27  Car.  II.)  there  was  a  parol  promise  by  an 

infant  on  marriage,  to  settle  an  estate  when  he  came  of  age, 

and  though  the  Court  considered  such  a  parol  promise  might 

be  good,  (it  being  before   the  existence  of  the  statute  of 

frauds,)  yet  the  K.  B.  held,  in  that  case,  that  "  the  settlement 

not  being  made  until  three  or  four  years  after  he  came  of 

age,  and  not  being  made  directly,  according  to  the  promise, 

it  should  not  be  presumed  to  be  made  in  performance  of  the 

promise,  without  a  direct  proof  to  that  purpose ;"  and  it  was 

held,  in  that  case,  to  be  fraudulent. 

If  the  present  case  had,  therefore,  arisen  prior  to  the     A  settieu.cm 
statute  of  frauds,  I  apprehend  it  would  have  been  deemed  fnflpur™a™egof 
a  fraudulent  settlement  in  regard  to  the  existing  creditors,  a  parol  agree- 
nom  the  want  of  a  sufficient  connection  in  point  of  time,  ^o  before  m^ 
and  of  correspondence  in  point  of  proof,  between  the  settle-  "age,    is    not 
ment  and  the  alleged  agreement.     And,  if  it  did  correspond, 
the  proof  of  the  agreement  is  defective.     To  support  such 
a  settlement  upon  no  other  proof  of  the  prior  agreement 
than  the  declarations  of  the  husband  during  coverture,  would 
be  to  overturn  the  statute  of  frauds,  and  to  produce  the  most 
lax  and  dangerous  doctrines.     Every  fraudulent  debtor  might 
easily  render  such  doctrines  subservient  to  his  views,  for  he  has 
only  to  declare  that  he  makes  such  a  settlement  in  consequence 
of  a  prior  agreement,  and  he  can  then  transfer  all  his  estate 
to  his  family,  and  defraud  his  creditors.     But  this  cannot  be 
the  sound  rule,  and  we  ought,  at  least,  to  require,  from  the 
person  setting  up  the  settlement,  direct  and  certain  proof  of 
the  agreement,  independent  of  these  interested  and  suspi- 
cious declarations  of  the  party  himself. 

A    settlement   after   marriage,    in    pursuance   of  a   valid     But  a  settle- 
agreement  before  marriage,  may  be  good  and  binding.     This  "*"£  ^ade'Tu 
was  so  admitted  in  the  cases  of  Jason  v.  Jervis,  (1  Vern.  pursuance  of  a 
234.)  and  Ramsden  v.  HyUon,  (2   Vesey,  304.)     *And   in       [  *  489  ] 
the  case  of  Griffin  v.  Stanhope,  (Cro.  Jac.  454.)  and  in  Sir  ^"U^S 
Ralph  jBoui/'s  case,  (1  Vent.  193.)  a  settlement  after  marriage,  fore   marriage. 
in  pursuance  of  a  piior  parol  agreement,  was  held  good.  1SS°°  ' 
But  these  were  cases  prior  to  the  statute  of  frauds,  (29 
Charles  II.)  which  renders  void  all  parol  promises,  in  consid- 
eration of  marriage ;  and,  therefore,  since  the  statute,  it  has 
been  determined,  that  the  agreement,  to  be  valid,  must  be  in 

VOL.  III.  48  377 


489  CASES  IN  CHANCERY. 

1818.  writing.  Thus,  in  Montacute  v.  Maxwell,  (1  Str.  236.  1 
\^^-*^~**~'  P-  Wms.  618.)  the  wife  filed  her  bill  to  oblige  her  husbaud 
READE  to  settle  her  own  estate  to  her  separate  use,  setting  forth  a 
LIVING'STON.  Par°l  promise  before  marriage  to  do  it.  The  defendant 
pleaded  the  statute  of  frauds  as  to  any  parol  promise ;  and 
Lord  Ch.  Parker  allowed  the  plea,  and  observed,  that  the 
Court  could  not  take  cognizance  of  such  a  promise,  without 
"  breaking  the  very  words  and  intention  of  the  statute."  He 
thought,  however,  that  if  the  husband,  after  marriage,  had, 
in  writing,  admitted  the  former  agreement,  it  might  have  been 
material,  and  a  sufficient  consideration  to  support  a  subse- 
quent promise  in  writing.  In  the  case  of  fiundas  v.  Dutens. 
(1  Vcsey,jun.  196.)  this  point  was  much  discussed.  In  that 
case  there  was  a  settlement  of  the  wife's  property  after  mar- 
riage, reciting  a  parol  agreement  before  marriage,  to  settle 
her  property,  and  settling  it  in  pursuance  of  that  agreement, 
and  a  bill  by  the  creditors  to  set  aside  the  settlement.  On 
the  part  of  the  plaintiffs,  it  was  contended,  that  there  was 
no  such  agreement  as  was  alleged ;  and  if  there  was,  that 
the  parol  agreement  was  void  under  the  statute.  The  lord 
chancellor  thought  that  a  suit  after  marriage  on  a  parol 
agreement  for  a  settlement  upon  marriage,  and  on  the  ground 
of  part  performance,  would  not  do,  because  the  statute  is  so 
explicit ;  and  he  adds,  "  but  is  there  any  case  where,  in  the 
settlement,  the  parties  recite  an  agreement  before  marriage, 
in  which  it  has  been  considered  as  within  the  statute  ?  "  Sir 
John  Scott,  who  was  then  solicitor-general,  did  not  think  it 
(  *  490  ]  would  be  good,  and  the  chancellor  *said  "  he  would  be  glad 
to  hear  how  the  counsel  would  support  the  settlement." 

The  cause  went  off  on  another  point ;  and  the  case, 
though  containing  no  decision  on  the  question,  is,  as  far  as 
it  goes,  rather  an  authority  against  the  validity  of  a  settle- 
ment after  marriage,  though  it  contains  a  recital  of  a  prior 
parol  agreement.  It  seemed  to  be  admitted,  that  the  parol 
agreement,  as  such,  was  null,  and  that  if  it  had  any  effect,  it 
derived  it  entirely  from  the  recital  of  it  in  the  deed. 

Afterwards,  in  Randall  v.  Morgan,  (12  Vesey,  67.)  the 
master  of  the  rolls  alludes  to  the  dicta  in  this  case,  and 
observes,  that  the  effect  of  a  settlement,  with  such  a  recital, 
and  supposing  the  parol  agreement  to  have  had  actual  ex- 
istence, appears  not  to  have  been  decided;  but  he  doubted, 
extremely,  whether  a  letter  after  marriage,  referring  to  a  parol 
promise  before  marriage,  would  bind  ;  for  "  the  promise  being 
in  itself  a  nullity,  producing  no  obligation,  a  written  recog- 
nition after  the  marriage  would  give  it  no  validity." 

Sir  Wm.  Grant  may  not  have  recollected  an  anonymou 
case  in  Precedents  in  Chancery,  p.  101,  where  a  settlemen 
378 


CASES  IN  CHANCERY.  490 

after  marriage,  recited  to  be  in  consideration  of  a  portion        1818. 
secured,  was  held  to   afford  a  presumption  of  a  previous   *^^~^~+*s 
agreement.     But  such  a  loose  note  of  the  decision  is  scarcely        READE 
worth  observation  as  an  authority,  and  is  not  to  be  compared    LlvINe'ST05 
with  any  opinion  of  this  distinguished  judge. 

It  ought  here  to  be  noticed,  also,  that  the  case  of  Dtwt^cw 
v.  .Dutercs,  is  a  little  differently  reported  in  2  COT'S  Cases  in 
Chancery,  p.  235. ;  and  Lord  Thurlow  is  there  made  to  say, 
that  the  settlement,  with  a  recital  of  a  prior  parol  agreement, 
was  valid,  but  that  if  it  was  not  so,  the  plaintiffs  had  no 
equity  against  the  fund  which  they  sought.  We  cannot  say, 
from  this  report  of  the  case,  on  which  ground  the  bill  was 
dismissed,  nor  does  it  even  appear  whether  *the  creditors  [  *  491  ] 
were  prior  or  subsequent  to  the  settlement.  A  case  so 
uncertain  and  so  variously  reported,  can  be  of  no  material 
use  or  authority. 

Roberts,  in  his  Treatise  on  Fraudulent,  Conveyances,  p.  243, 
seems  to  think  it  settled,  that  proof  of  a  parol  agreement  be 
fore  marriage  will  support  the  subsequent  settlement  against 
the  claims  of  creditors  and  purchasers.  And  yet,  he  says, 
it  cannot  be  denied  that  such  parol  agreements  are  within 
the  statute  of  frauds,  and  have  no  legal  obligation,  and  are 
without  legal  remedy,  "  and  no  proof  can  be  admitted  to  give 
them  a  substantive  validity."  There  are,  however,  he  con- 
tinues to  observe,  "  many  instances,  both  at  law  and  in  equity, 
of  their  influence  on  the  construction  and  efficacy  of  written 
agreements  !  "  A  writer  that  will  dictate  in  such  a  heedless 
and  inconsistent  manner,  is  not  to  be  regarded ;  and  though 
I  think  that  all  questions  of  this  kind  ought  to  be  decided 
upon  principles  to  be  deduced  from  a  critical  examination 
of  adjudged  cases,  and  are  not  to  rest  upon  the  loose  observa- 
tions and  speculations  of  elementary  writers,  yet  I  may,  in 
this  instance,  refer  to  the  able  and  excellent  treatise  of  Mr. 
Atherley  on  Marriage  Settlements.  He  says,  (p.  149.)  that  the 
doctrine  cannot  possibly  be  sustained,  that  a  settlement  after 
marriage  can  rest  its  validity,  as  against  creditors,  on  a  mere 
parol  agreement  before  marriage  ;  for  the  agreement  can  only 
be  proved  by  parol  evidence ;  and  to  admit  such  evidence 
would  be  inconsistent  with  the  spirit  and  design  of  the  statute 
of  frauds. 

I  doubt  much  whether  a  post-nuptial  settlement  can  be  „  Thc«g|ias«- 

1111-1  •  1-1  f  i       rr         tlement       after 

held  valid  as  against  creditors,  by  the  mere  force  and  effect  marriage,     re- 

of  a  recital  in  it  of  a  prior  parol  agreement.     The  weight  of  £' ^cement7*^ 

authority,  as  well  as  the  reason  and  policy  of  the  case,  I  tcred  into  be- 

should  be  inclined  to  think,  are  against  it ;  but  whatever  may  ffrtJ?*r™SS 

ii  1*1  •    •          /Y»  11  seems,    nidi 

be  the  rule  in  that  case,  it  is  sufficient  to  observe,  that  the  set-  it  would   not, 

therefore,       b« 
valid  against  jreditora 

379 


492*  CASES  IN  CHANCERY. 

1818.       tlement  in  question  has  no  .recital,  and  is  not  attended  with 

v^^-^^-^^x  any  written  recognition  whatever  of  any  prior  *agreement. 

READE       There  is  not  a  single  case  that  gives  countenance  to  such  a 

LIVING'STON.    settlement-     The  decision  in  Beaumont  v.    Thorp   (1    Ves. 

27.     Belt's  Supp.  S.  C.)  seems  to  be  completely  in  point. 

That  was  a  settlement  in  consideration  of  a  marriage  already 

had,  and,  as  Lord  Hardwicke  observed,  "  without  recital  of 

any  articles  before  the  marriage,  and  so  on  the  face  of  it 

voluntary."     He   declared   it   fraudulent    against   creditors, 

under  the  statute  of  Eliz.,  as  the  party  was  indebted  to  the 

plaintiff  when  he  made  the  settlement. 

A  voluntary  If  the  settlement  be  considered,  as  I  think  it  ought  to  be, 
marriage,  by  a  unconnected  with  any  ante-nuptial  agreement,  the  simple  ques- 
person  indebted  tion  then  is,  whether  such  a  voluntary  settlement  after  marriage, 

at   the  tune,  is   ,  .      ,    ,,     ,  .,         ,-  ,  .  °  , 

fraudulent  and  by  a  party  indebted  at   the  time,  be  not,  as  against  such 

void      against  creditors,  absolutely  fraudulent  and  void. 

I  think  this  question  can  be  most  satisfactorily  answered  in 
the  affirmative  ;  but  the  manner  in  which  it  has  been  argued, 
imposes  on  me  the  necessity  of  reviewing  the  cases. 

As  early  as  the  case  of  &haiv  v.  Standysh,  (2  Vern.  326.) 
the  distinction  on  the  subject  of  voluntary  conveyances  seems 
to  have  been  taken  and  understood,  between  creditors  exist- 
ing at  the  time  of  the  conveyance,  and  subsequent  creditors, 
and  that  it  was  clearly  void  as  to  the  former,  though  not  as 
of  course  against  the  latter.  This  was  so  advanced  upon  ar- 
gument in  that  case ;  and,  perhaps,  it  was  a  distinction  of 
common  law  growth  ;  for  it  was  agreed  in  Tivyne's  case,  (3  Co. 
83.  a.)  that  an  estate  made  by  fraud  shall  be  avoided  only  by 
him  who  has  prior  right ;  but  he  who  hath  subsequent  right  shall 
not  avoid  it.  But  in  the  Exchequer  case  of  St.  Amand  v.  Bar- 
bara, (Comyn's  Rep.  255.)  a  settlement  was  made  upon  a 
child  by  a  party  indebted  by  bond,  and  who  afterwards  be- 
came also  indebted  by  bond.  It  was  admitted  as  a  doubtful 
point,  whether,  if  the  party  had  not  been  indebted  at  the 
time,  the  settlement  would  have  been  fraudulent  as  against 

[  *  493  ]  the  subsequent  Creditors  ;  but  as  the  party  was  indebted  at 
the  time,  the  settlement  was  void  against  debts  contracted  after- 
wards, and  all  the  bond  creditors  were  allowed  to  come  in  as 
against  the  settlement.  If  the  rule  was  otherwise,  it  was  said 
in  this  case,  that  the  same  result  would  follow  in  another  way  ; 
for  the  subsequent  bond  creditors  would  be  permitted  to  stand 
in  the  place  of  the  prior  bond  creditors,  and  the  assets  be  so 
marshalled  as  to  satisfy  all. 

Lord  Talbot  considered  it  a  doubtful  point,  and  forebore 
an  opinion,  in  Jones  v.  Marsh,  (Cases  Temp.  Talbot,  63.) 
whether  a  voluntary  settlement,  without  consideration,  would 
be  held  fraudulent  as  against  a  subsequent  creditor  of  many 
380 


CASES  IN  CHANCERY. 

years  afterwards.     But  though  there  might  be  doubts  on  the        1318. 
point  at  that  day,  it  seems  to  have  been  long  since  settled,  \^*-^~^, 
that  if  the  party  be  not  indebted  at  the  time,  and  has  no        READ*. 
fraudulent  views,  a  subsequent  creditor  cannot  impeach  a   LIVINGS! 
prior  settlement,  on  the  mere  ground  of  its  being  voluntary. 
This  point  was  fully  explained  by  Lord  Hardwicke  in  Russel 
v.   Hammond,   (1   Aik.   15.)    where,    speaking  of  voluntary 
conveyances,  he  says,  he  has  hardly  known  a  case  where  the 
person  conveying  was  indebted  at  the  time,  and  the  settle- 
ment  not   deemed    fraudulent;  but  the   conveyance  is  not 
fraudulent  where  the  party  making  it  is  not  indebted  at  the 
time.     Subsequent  debts  will  not  shake  such  a  settlement, 
unless  there  be  some  badge  of  actual  fraud,  as  a  continuance 
in  possession. 

The  observation  of  the  chancellor,  that  "  he  had  hardly 
known  a  case,"  would  imply,  that  there  had  been  cases  in 
which  a  voluntary  settlement  was  held  good,  even  though 
the  party  was  indebted  at  the  time.  But  it  is  sufficient  to 
observe  that  no  such  case  appears;  and  we  cannot  place 
great  reliance  on  the  report,  as  to  the  precise  words  used  by 
the  Court;  especially  as  Lord  Hardwicke  speaks,  in  othei 
cases,  without  any  such  qualification. 

*In  Stileman  v.  Ashdown,  (2  Aik.  477.)  Brown  v.  Jones,  (1  [  *  494  ] 
Aik.  190.)  Wheeler  v.  Caryl,  (Amb.  121.)  and  Hylton  v. 
Biscoe,  (  Ves.  304.)  Lord  Hardwicke  defined  what  were  good 
settlements  after  marriage,  as  against  creditors ;  and  he  held 
those  good  which  were  made  in  consideration  of  a  portion  paid 
at  the  time  by,  or  on  behalf  of  the  wife,  or  in  consideration  of 
an  agreement  by  articles  before  marriage.  Such  settlements 
are  of  equal  validity  with  those  made  before  marriage,  in  con- 
sideration of  marriage,  and  which,  it  is  agreed,  are  good,  even 
though  the  party  be  then  indebted.  (Nairn  v.  Prowse,  6 
Vesey,  759.  Campion  v.  Cotton,  17  Vesey,  271,  2.  George 
v.  Milbanke,  9  Vesey,  193.)  But  he  said,  if  the  settlement 
after  marriage  was  in  consideration  of  marriage  only,  it  was 
voluntary  and  fraudulent  against  creditors ;  and  though  he 
was  not  even  indebted  at  the  time,  yet  if  he  made  the  settle- 
ment with  a  view  to  a  future  indebtedness,  it  was  equally 
fraudulent.  So,  in  Ward  v.  Shallet,  (2  Vesey,  18.)  he  admits 
a  settlement  after  marriage,  in  consideration  of  a  portion  ad- 
vanced, or  in  consideration  of  the  wife  parting  with  a  con- 
tingent interest  secured  by  her  husband's  bond,  before  mar- 
riage, to  be  good ;  but  still  he  qualifies  the  admission  by 
saying,  there  must  be  no  "  fraud  or  great  inadequacy." 

All  the  cases  assume  the  position  to  be  undeniable,  that 
the  husband  must  not  be  indebted  at  the  time  of  the  settle- 
ment. They  leave  no  possible  doubt  on  the  point.  In  Mid- 

381 


494  CASES  IN  CHANCERY. 

1818.       dlecome  v.  Marlow,  (2  Atk.  519.)  Lord  Hardwicke  held  a 

^r-^~*+-s  post-nuptial  settlement  good,  "  there  being  no  proof  of  the 
READE       husband  being  indebted  at  the  time ;  there  was  not  so  much 

LIVINGSTON  as  a  sin^e  creditor."  The  settlement  in  this  case  was  also 
very  reasonable,  it  being  only  of  the  personal  estate  received 
from  the  wife.  So,  again,  in  Taylor  v.  Jones,  (2  Atk.  600.) 
a  settlement  after  marriage  on  the  wife  and  children  was  held 
fraudulent,  as  to  creditors,  under  the  13th  Eliz. ;  and  this 

[  *  495  ]  case  is  worthy  of  notice  *for  the  doctrines  which  it  contains. 
The  settlement  was  held  to  be  fraudulent,  as  well  in  respect 
to  creditors  after,  as  before  the  settlement,  for  the  debtor 
continued  in  possession  of  the  property  settled  ;  and  the  stat- 
ute of  Eliz.  was  held  to  extend  equally  to  the  subsequent 
creditors  who  were  delayed  or  defrauded.  It  was  further 
observed  by  the  master  of  the  rolls,  "  that  it  was  not  material, 
in  that  case,  what  the  circumstances  of  the  father  were  at 
the  time  of  the  settlement,  any  farther  than  as  evidence  to 
show,  if  he  was  in  indigent  circumstances,  that  it  was  made 
with  an  intent  to  commit  a  fraud." 

This  case  contains  also  a  just  observation  on  the  sympathy 
which  is  usually  excited,  or  attempted  to  be  excited,  in  these 
cases,  in  favor  of  the  objects  of  the  settlement.  "  I  have 
always,"  observes  the  master  of  the  rolls,  "  a  great  com- 
passion for  wife  and  children ;  yet,  on  the  other  side,  it  is 
possible,  if  creditors  should  not  have  their  debts,  their  wives 
and  children  may  be  reduced  to  want." 

In  Walker  v.  Burroivs  (1  Atk.  93.)  Lord  Hardwicke  ad- 
mitted, most  explicitly,  that  if  the  party  was  indebted  at  the 
time,  the  voluntary  settlement  was  void ;  and  he  admitted, 
with  equal  certainty,  that  if  the  party  was  not  indebted  at 
the  time,  or  immediately  after  the  execution  of  the  deed, 
(which  would  be  evidence  of  intentional  fraud,)  the  pro- 
vision for  the  wife  and  children  would  not  be  affected  by 
subsequent  debts.  But  if  the  feet  of  indebtedness  at  the 
time  be  established,  then  it  was  held,  that  "  it  would  have 
run  on  so  as  to  take  in  all  subsequent  creditors."  Mr.  Mad- 
dock  (1  Madd.  Ch.  Rep.  420.  note.)  says  he  has  seen  a  MS. 
note  of  this  case,  and  that  it  agrees  with  the  printed  report ; 
and  this  case  may  be  considered  as  establishing  the  doctrine, 
as  far  as  the  decision  of  Lord  Hardwicke  could  establish  it, 
that  indebtedness  at  the  time  will  defeat  a  post-nuptial  vol- 
untary settlement,  and  that  if  it  be  set  aside  in  favor  of  a 

j  *  496  ]  creditor  at  *the  time,  all  the  subsequent  creditors  are  let  in 
on  the  principle  of  equal  apportionment,  or  marshalling  of 
assets. 

Lord  Hardwicke 's  decisions  are  all  consistent  on  this  in- 
teresting subject. 
382 


CASES  IN  CHANCERY.  496 


Th-rs,  in  White  v.  Sansom,  (3  ^fr.  410.)  it  was  a  doubtful        1818. 
point    whc'her  the  plaintiff's  debt  accrued   until  after  the  s^-v—  x^ 
settlement  •  and  on  that  doubt  the  bill  was  dismissed.     In        READE 

Beaumont  v.  Thorp,  already  cited,  the  settlement  was  by  a  v- 

•     i  i  .L   j      L  .Lif     ..•  i  •  -i  LIVINGSTON. 

man  mder/ted  at  the  time  ;  and  it  was  set  aside  ;  and  all  the 

specialty  creditors,  before  and  after  the  settlement,  were  let 
in.  So,  in  Lord  Townshend  v.  Wind  ham,  (2  Veszy,  1.)  Lord 
Hardivicke  expressed  himself  in  the  most  explicit  and  decided 
manner.  He  said,  that  he  took  it,  that  a  man  "actually 
mdebted,  and  conveying  voluntarily,  always  meant  to  defraud 
creditors."  I  understand  him  to  mean  here,  that  this  was 
'he  conclusion  of  law,  which  was  not  to  be  gainsayed  ;  and 
he  said  he  knew  of  no  case  where  a  voluntary  conveyance 
to  a  child  by  a  man  indebted  at  the  time,  was  not  set  aside 
for  the  benefit  of  creditors  ;  but  he  said,  that  a  voluntary 
conveyance,  without  any  badge  of  fraud,  and  by  a  person  not 
indebted  at  the  time,  would  be  good,  though  he  afterwards 
became  indebted.  He  spoke  strongly  in  favor  of  the  supe- 
riority of  the  claims  of  creditors  over  family  provisions,  and 
observed,  that  '"  though  an  unfortunate  case  may  arise  in 
respect  to  children,  for  whom  parents  are  bound  by  nature 
to  provide,  it  is  impossible  to  say,  the  consideration  in  respect 
of  them  is  of  so  high  a  nature  as  that  of  paying  just  debts, 
and,  therefore,  the  Court  never  preferred  them  to  just  cred- 
itors." In  Fitzer  v.  Fitzer,  (2  Atk.  511.)  Lord  Hardwicke 
asked  the  attorney-general  if  there  was  an  instance  in  that 
Court  where  a  conveyance  from  husband  to  wife,  without 
any  pecuniary  consideration  moving  from  the  wife,  had  been 
held  to  be  good  against  creditors. 

*The  same  rules  and  distinctions  are  declared  and  enforced         *  497  ] 
throughout  the  subsequent  decisions. 

In  Stephen  v.  Olive,  (2  Bro.  90.)  a  settlement  was  made 
after  marriage,  by  a  person  not  indebted  except  in  500 
pounds,  secured  by  mortgage  on  the  settled  estate  ;  and  the 
master  of  the  rolls  held,  that  a  settlement  after  marriage,  in 
favor  of  a  wife  and  child,  by  a  person  not  indebted  at  the 
time,  was  good  against  subsequent  creditors  ;  and  he  refused 
to  grant  relief  in  this  case  to  a  subsequent  creditor,  notwith- 
standing the  settler  was  indebted  at  the  time,  seeing  that  the 
debt  existing  at  the  time  was  secured  by  a  mortgage  on  all 
the  estate  settled.  And  Lord  Eldon  afterwards,  in  George 
v.  Milbanke,  (9  Vesey,  193.)  allows  of  the  same  exception, 
when  he  says,  that  if  the  voluntary  settlement  contains  a 
provision  for  the  payment  of  debts  then  existing,  that  makes 
it  good  against  all  future  creditors. 

It  cannot  escape  observation,  that  the  only  question  in 
these  cases  was  respecting  the  subsequent  creditors.  There 

383 


497  CASES  IN  CHANCERY. 

1818.       IS  no  doubt,  in  any  case,  as  to  the  safety  and  security  of  the 
^.rf^^^-^^x  then  existing  creditor.     No  voluntary  post-nuptial  settlement 
READE        was  ever  permitted  to  affect  him ;  and   the  cases  seem  to 
LIVINGSTON.    agreej  tnat  the  subsequent  creditors  are  let  in  only  in  partic- 
ular cases ;  as  where  the  settlement  was  made  in  contem- 
plation of  future  debts,  or  where  it  is  requisite  to  interfere 
and  set  aside  the  settlement,  in  favor  of  the  prior  creditor, 
or  where  the  subsequent  creditor  can  impeach  the  settlement, 
as  fraudulent,  by  reason  of  the  prior  indebtedness. 

But  the  case  of  Lush  v.  Wilkinson  (5  Vcsey,  384.)  has 
been  much  relied  upon,  as  if  it  gave  more  strength  to  the 
settlement  against  subsequent  debts,  than  the  prior  cases 
seem  willing  to  allow. 

The  settlement  in  that  case  was  on  the  wife,  after  mar- 
riage, of  an  annuity  charged  upon  lots  subject  to  two  mort 
gages.  The  bill  was  by  a  subsequent  creditor  against  the 
[  *  41)8  ]  *executor  and  widow  of  the  husband,  to  set  aside  the  deed 
granting  the  annuity,  and  charged  that  the  husband  was  in- 
debted to  several  persons,  and  in  insolvent  circumstances, 
at  the  date  of  the  deed.  The  answer  averred  that  the  hus- 
band was  not  insolvent,  and  that,  except  the  two  mortgages, 
he  did  not  owe  above  100  pounds  at  the  time,  and  that  none 
of  the  debts  were  due  at  his  death. 

It  was  contended,  on  the  part  of  the  defendants,  that 
there  was  no  evidence  of  any  debt  at  the  time,  except  the 
two  mortgages,  for  the  plaintiff  produced  no  testimony ;  and 
the  opinion  of  Lord  Mansfield,  in  Doe  v.  Routledge,  (Cowp. 
705.)  was  referred  to,  in  which  he  considers  that  the  validity 
of  a  voluntary  settlement  depended  on  the  fact  whether  the 
settler  was  indebted  at  the  time.  The  counsel  on  the  other 
side  admitted  the  law  to  be,  that  there  must  be  a  debt  at  the 
time.  Lord  Ahanley,  the  master  of  the  rolls,  then  observes, 
that  the  plaintiff  appeared  as  a  subsequent  creditor,  and 
without  proving  any  one  antecedent  debt,  and  he  comes  with 
a  fishing  bill,  and  desires  an  account  and  an  inquiry,  in  order 
to  prove  antecedent  debts ;  and  the  bill  was  dismissed  with 
liberty  to  file  another. 

This  was  the  case  of  a  subsequent  creditor ;  and  therefore 
it  does  not  apply  to  the  case  before  me,  except  so  far  as  it 
assumes,  like  all  other  cases,  the  rule  to  be  settled,  that  a 
voluntary  settlement  never  can  impair  a  subsisting  debt. 
But  there  is  a  dictum  of  the  master  of  the  rolls  in  this  case 
which  has  been  thought  to  be  of  some  moment,  where  he 
observes  that  a  single  antecedent  debt  wTill  not  do.  Every 
man  must  be  indebted  for  the  common  bills  for  his  house 
It  must  depend  upon  this  whether  tie  was  in  insolvent  cur 
cumstances  at  the  time. 
384 


CASES  IN  CHANCERY.  49S 

Such  a  loose  dictum,  one  would  suppose,  was  not  of  much  1818. 
weight ;  especially  as  there  is  no  preceding  case  which  gives 
the  least  countenance  to  it.  Another  master  of  the  rolls 
had  before  said,  in  Taylor  \.  Jones,  already  cited,  that  the 
circumstances  of  the  settler  at  the  time  of  *the  settlement 
were  not  material,  except  as  to  the  question  of  actual,  inten- 
tional fraud  ;  and  that  intention,  we  know,  is  never  the  inquiry 
in  respect  to  the  demands  of  the  prior  creditors.  If  insol- 
vency can  ever  be  made  a  question,  as  to  these  voluntary 
settlements,  it  can  only  be  in  respect  to  the  subsequent  cred- 
itors ;  and  Lord  Alvanley  was  speaking  of  such  a  case,  and 
of  none  other.  But  even  here  the  cases  are  numerous  to 
show,  that  if  the  settlement  be  once  set  aside  by  the  prior 
creditors,  subsequent  creditors  are  entitled  to  come  in,  and 
be  paid  out  of  the  proceeds  of  the  settled  estate. 

In  Kidney  \.  Coussmaker,  (12  Vesey,  133.)  the  question 
was  on  a  post-nuptial  settlement  as  against  creditors ;  and  it 
was  insisted,  that  they  were  entitled  to  defeat  it,  if  the  settler 
was  indebted  at  the  time ;  but  there  was  said  to  be  no  proof 
of  a  single  debt  existing  at  the  date  of  the  settlement.  Sir 
Wm.  Grant,  in  giving  his  opinion,  observed,  that  in  Lush  v. 
Wilkinson,  the  bill  was  filed  for  the  purpose  of  affecting  the 
settlement,  upon  the  ground,  that  the  settler  was  insolvent 
at  the  time  it  was  made,  and  that  there  was  no  evidence  in 
support  of  such  a  charge,  and  the  bill  was  dismissed.  He 
said  he  was  disposed  to  follow  the  decision  of  Lord  Rosslyn, 
in  Montague  v.  Lord  Sandwich,  (July,  1797,  cited,  ib.  p.  148. 
and  5  Vesey,  386.  note,)  that  the  settlement  was  fraudulent 
only  as  against  such  creditors  as  were  creditors  at  the  time. 

Lord  Rosslyn,  in  the  case  referred  to,  declared  a  settlement 
void,  as  to  the  creditors,  prior  to  its  date.  There  was  no 
question  of  insolvency  made ;  but  it  was  clearly  held,  by 
Lord  Rosslyn,  in  that  case,  (see  12  Vesey,  158.  note,)  that 
if  the  settlement  be  affected  as  fraudulent  against  such  cred- 
itors, the  subject  is  thrown  into  assets,  and  all  subsequent 
creditors  are  let  in. 

The  last  case  on  the  subject  which  I  shall  notice,  is  that 
of  Holloivay  v.  Millar  J.  (1  Mad  dock's  Ch.  Rep.  414.) 
That  was  a  bill  by  creditors  against  the  parties  to  a  voluntary 
Settlement  upon  a  natural  child,  praying,  that  the  deficiency  [*500  J 
of  assets,  if  any,  might  be  made  good  out  of  the  settled 
estate.  The  plaintiffs  were  subsequent  creditors,  and  the 
bill  did  not  state  that  the  party  was  indebted  when  the 
settlement  was  made. 

The  counsel  for  the  plaintiffs  contended,  that  if  it  was 
necessary  to  show,  that  the  party  was  indebted  at  the  time, 

VOL.  III.  49  385 


500  CASES  IN  CHANCERY. 

a  reference  ought  to  be  ordered  for  that  purpose  ;  hut  it  \vas 
observed,  on  the  other  side,  that  there  was  no  charge  in  the 
bill  to  warrant  the  inquiry,  and  that  a,  man  must  be  indebted, 
LIVIN«   ro*    anc^  lal'gety  so?  to  render  the  settlement  invalid,  mere  trifling 
debts  in  the  course  of  house-keeping  would  not  be  sufficient. 
The  vice-chancellor,  in  giving  his  opinion,  said,  that  the 
settler  here  was  not  indebted  at  the  time,  and  that  a  volun  • 
tary  conveyance  could  not  be  avoided  by  subsequent  cred 
itors,  except  on  the  ground  of  a  fraudulent  intent ;  for  that 
t  was  clear,  that  a  voluntary  settlement  even  in  favor  of  a 
stranger,  by  a  person  not  indebted  at  the  time,  nor  meaning 
a  fraud,  was  good  against  subsequent  creditors.     But  he  said 
further,  that  a  voluntary  disposition  even  in  favor  of  a  child, 
was  not  good  if  the  party  was  indebted  ;  and  he  refused  an 
inquiry,  whether  the  party  was  indebted  at  the  time,  because 
there  was  no  foundation  for  such  an  inquiry  laid  by  the  bill. 
.*    /oiuntuM       The  conclusion  to  be  drawn  from  the  cases  is,  that  if  the 
erson*eUindoh/  Party  be  indebted  at  the  time  of  the  voluntary  settlement,  it 
:.s  presumed  is  presumed  to  be  fraudulent  in  respect  to  such  debts,  and 
aD  ex^  no  circumstance  will  permit  those  debts  to  be  affected  by  the 
isting      debts,  settlement,  or  repel  the  legal  presumption  of  fraud.     The 

ivithout    regard  .•  /•  •,  •      , i  •  i  i  •,  ,i 

to  their  amount,  presumption  or  law,  in  this  case,  does  not  depend  upon  the 

or  to  the  extent  amount  of  the  debts,  or  the  extent  of  the  property  in  settle- 

sett!ed,^r°to6the  rnent,  or  the  circumstances  of  the  party.     There  is  no  such 

circumstances     Hne  of  distinction   set  up,  or  traced   in   any  of  the  cases. 

The  attempt  would  be  embarrassing,  if  not  dangerous  to  the 

[  *  501  ]       rights  of  the  creditor,  and  prove  an   inlet  to  *fraud.     The 

law  has,  therefore,  wisely  disabled  the  debtor  from  making 

any  voluntary  settlement  of  his  estate,  to  stand  in  the  way  of 

his  existing  debts.     This  is  the  clear  and  uniform  doctrine  of 

the  cases,  and  it  is  sufficient  for  the  decision  of  the  present 

cause. 

But  with  re-  With  respect  to  the  claims  of  subsequent  creditors,  there 
jM€»tf  debt's  Se\t  IS  more  difficulty  in  arriving  at  the  conclusion ;  and  I  am  not 
seems,  that  the  called  upon  in  this  case  to  give  any  definitive  opinion,  for 
frTud^arisino-  there  are  no  such  creditors  before  the  Court.  But  since  the 
from  the  party  subject  has  been  examined,  I  would  suggest  what  appears  to 

being-    indebted  J  ,     ,  •,,  •      ,      ,-11  r        r     A,        J' 

at  the  time,  may  me>  at  present,  but  with  my  mind  still  open  lor  lurther  dis- 
be  repelled  by  cussion  and  consideration,  to  be  the  better  opinion  from  the 

circumstances;  •,   •       .1      .    .t  ,•  c  f         i  ^i  j 

as  that  the  exist-  cases ;  it  is,  that  the  presumption  ot  iraud  as  to  these  crca- 
ing  debts  are  itors,  arising  from  the  circumstance,  that  the  party  was 
^rtgage,  or  by  indebted  at  the  time,  is  repelled  by  the  fact  of  these  debts 

a  provision  being  secured  by  mortgage,  or  by  a  provision  in  the  settle- 
made  for  them  ,,  ,  •/.  J  u  •  •  *  *•*]  j 

in  the  settle-  nient ;  that  it  no  such  circumstance  exists,  they  are  entitled 
to  impeach  the  settlement  by  a  bill  properly  adapted  to  their 
purpose,  and  charging  and  proving  indebtedness  at  the  t;me, 
386 


CASES  IN  CHANCERY.  501 

so  that  their  rights  will  not  depend  on  the  mere  pleasure  of  the        J  3]  3. 

prior  creditors,  whether  they  will  or  will  not  impeach  the  settle-  ^*-—x,  -*^/ 
ment ;  that  the  question  then  arises,  To  what  extent  must  the  REIDE 

subsequent  creditors  show  a  prior  indebtedness  ?     Must  they  LIVINGSTOB 
follow  the  dictum  of  Lord  Alvanley,  and  show  insolvency,  or     And    SM/W- 

will  it  be  sufficient  to  show  any  prior  debt,  however  small,  as  i"ent .creditors 

is  contended  for  by  Mr.  Atherley,  with  his  usual  ability,  in  his  they  settiemeat, 

Treatise  on  Marriage  Settlements?     (Ath.  Mar.  Set.  p.  212.  on  lhe  groumf 

to  219.)  I  should  apprehend,  that  the  subsequent  creditors  edues's;  '"iMie 

would  be  required  to  20  so  far,  and  only  so  far,  in  showing  can  sllow  antc- 

,    ,•  iji  ai    •  •  i  i  -j  ?   cedent       debts 

debts,  as  would  be  sumcient  to  raise  reasonable  evidence  ot  sufficient  in  a- 
a  fraudulent  intent.  To  show  any  existing  debt,  however  m°u«t  to  atibrd 

,   •  a.  j    •          -.    ul        /,  i  •    i  •  reasonable  evi- 

triiiing  and  inevitable,  (to  which  every  person  is,  more  or  dence  of  a 
less,  subject,)  would  not  surely  support  a  presumption  of  fraudulent  in- 
fraud  in  fact;  no  voluntary  settlement  in  any  possible  case  not 'obliged  to 
could  stand  upon  that  construction.  *I  should  rather  con-  [  *  502  ] 
elude,  that  the  fraud  in  the  voluntary  settlement  was  an  ?how  the  abs°- 

.    f  /-i  i  i  A          i  f  -A  i    lute    insolvency 

inference  or  law,  and  ought  to  be  so,  as  tar  as  it  concerned  Of  the   person 
existing  debts ;  but  that,  as  to  subsequent  debts,  there  is  no  making  the  set- 
such  necessary  legal  presumption,  and  there  must  be  proof 
of  fraud  in  fact ;  and  the  indebtedness  at  the  time,  though 
not  amounting  to  insolvency,  must  be  such  as  to  warrant  that 
conclusion.     It  appears,  in  all  the  cases,  (and  particularly  in     Under  the  13 
the  decision  of  Sir  Thomas  Planter  since  the  publication  of  10.^.44  sfs!) 
M.  Atherlctfs  treatise)  that  a  marked  distinction  does  exist,  lhere.  '3  a  dis- 
under  the  statute  of  13  E'iz.,  between  prior  and  subsequent  tween"prior  and 
creditors,  in  respect  to  these  voluntary  settlements;  and  it  is  subsequent 
now  settled,  that  the  settlement  is  not  void,  as  of  course,  gard  to'vohnh 
against  the  latter,  when  there  were  no  prior  debts  at  the  time.  tary        sett1*- 

The  law  in  Massachusetts  seems  to  be  laid  down  according 
to  this  view  of  the  subject. 

In  Bennett  v.  Bedford  Bank,  (11  Ti/ng,  421.)  there  was 
a  voluntary  conveyance  to  a  son  by  a  father,  indebted  at  the 
time,  but  not  in  embarrassed  circumstances,  or  equal  in  debt 
to  the  value  of  his  property.  The  debt  to  the  plaintiff  did 
not  accrue  until  several  years  afterwards.  It  was  held  by  the 
Court,  that  as  there  was  no  fraud  in  fact,  the  deed  in  this 
case  was  good  against  the  subsequent  creditor,  "  and  against 
all  persons  but  such  as  were  creditors  at  the  time." 

But  there  is  a  case,  recently  decided  by  the  Supreme  Court 
uf  Errors  of  Connecticut,  (Salmon  v.  Bennett,  1  Day's  Conn. 
Rep.  N.  S.  p.  525.)  which  lays  down  a  rule  somewhat  differ- 
ent from  that  which  I  have  deduced  from  the  English  cases. 

The  question  arose  in  an  action  of  ejectment.  The  plain- 
tirf  had  purchased  Virginia  lands  of  Sherwood,  in  1794.  and 
paid  him  the  purchase  money.  In  1809,  by  a  decree  in 
chancery,  the  sale  was  annulled,  on  the  ground  of  fraud,  and 

3-S7 


503*  CASES  IN  CHANCERY. 

1818.       *ne  purchase  money  decreed  to  be  refunded,  on  condition 
^^-^~+*^/  that  the  plaintiff  executed  a  release.     This  was  *done,  and 
READE        he  afterwards,  in  1814,  levied  an  execution  founded  on  tha 
LIVINGSTON,    decree,  °n  lands  which  Shcncood  owned  in  1794,  but  which 
he  had  conveyed   to  his  son  in    1798,  in   consideration  of 
natural  affection  only,  and  which  lands  the  son  had,  in  1 802, 
conveyed  to  the  defendant,  with  knowledge  of  the  deed  to 
the  son.     It  was  proved,  that  when  Sherwood  executed  the 
deed  of  gift,  he  was  not  indebted  to  any  person,  except  to 
the  plaintiff,  in  the  manner  stated,  and  that  the  lands  con- 
veyed did  not  contain  more  than  one  eighth  part  of  his  real 
estate.     But  it  was  admitted,  that  long  before  the  levy  of  the 
execution,  he  had  conveyed  all  his  real  estate,  and  was,  at 
that  time,  destitute  of  property. 

One  question  was,  whether  the  deed  to  the  son,  being 
voluntary,  was  not  fraudulent  as  against  the  plaintiff;  and 
as  the  opinion  of  the  Court  was  on  this  point,  I  need  not 
notice  any  other.  It  was  also  made  a  question,  at  the  bar, 
whether  the  plaintiff  was  to  be  deemed  an  existing  creditor 
at  the  time  of  the  deed  to  the  son  ;  but  as  the  Court  assumed 
the  fact  of  an  existing  indebtedness  at  the  time  of  the  con- 
veyance, I  need  not  notice  that  point. 

The  judgment  of  the  Court  was  in  favor  of  the  defendant, 
and  the  opinion  of  eight  of  the  judges,  as  delivered  by  the 
chief  justice,  was,  that  a  distinction  existed  in  the  case  of  a 
voluntary  conveyance,  between  the  children  of  the  grantor 
and  strangers,  and  that  mere  indebtedness  at  the  time  will 
not,  in  all  cases,  render  a  voluntary  conveyance  void  as  to 
creditors,  where  it  is  a^provision  for  a  child ;  tha.t  an  actual 
or  express  intent  to  defraud  need  not  be  proved,  for  this 
would  be  impracticable  in  many  instances  where  the  convey- 
ance ought  not  to  be  established,  and  it  may  be  collected 
from  the  circumstances  of  the  case ;  that  if  there  be  no 
fraudulent  intent,  and  the  grantor  be  in  prosperous  circum- 
stances, unembarrassed,  and  not  considerably  indebted,  and 
the  gift  a  reasonable  provision  for  the  child,  leaving  ample 
*  504  ]  funds  unencumbered,  for  *the  payment  of  the  grantor's  debts, 
the  voluntary  conveyance  to  the  child  will  be  valid  against 
existing  creditors.  But  if  the  grantor  be  considerably  in- 
debted and  embarrassed,  and  on  the  eve  of  bankruptcy,  or 
if  the  gift  be  unreasonable,  disproportioned  to  his  property, 
and  leaving  a  scanty  provision  for  his  debts,  the  conveyance 
will  be  void,  though  there  be  no  fraudulent  intent.  And  it 
was  concluded,  that,  under  the  circumstances  of  that  case, 
the  indebtedness  of  the  grantor,  at  the  time,  to  the  plaintiff, 
was  not  sufficient  to  affect  the  conveyance  to  his  son. 

The  Court  do  not  refer  to  authorities  in  support  of  theii 
388 


CASES  IN  CHANCERY. 

opinion,  and,  perhaps,  they  may  have  intended  not  to  follow,  1818. 
strictly,  the  decisions  at  Westminster  Hall,  under  the  statute  •^^^^-^.. 
of  13  Eliz.  I  can  only  say  that,  according  to  my  imperfect  READS 
view  of  those  decisions,  (and  by  which  I  consider  myself  LIVINGS™* 
governed,)  this  case  was  not  decided  in  conformity  to  them ; 
but  I  make  this  observation  with  great  deference  to  that 
Court.  There  may  be  loose  sayings,  and  mere  notes  of 
cases,  from  which  nothing  very  certain  or  intelligible  can  be 
deduced ;  but  I  have  not  been  able  to  find  the  case  in  which 
a  mere  voluntary  conveyance  to  a  wife  or  child  has  been 
plainly  and  directly  held  good  against  a  creditor  existing  at 
the  time.  The  cases  appear  to  me  to  be  upon  that  point 
uniformly  in  favor  of  the  creditor.  The  vice-chancellor,  in 
Holltway  v.  Millard,  says,  in  so  many  words,  that  "a  volun- 
tary disposition,  even  in  favor  of  a  child,  is  not  good,  if  the 
party  is  indebted  at  the  time."  The  cases  of  St.  Amand  v. 
Barbara,  Fitzer  v.  Fitzer,  Taylor  v.  Jones,  and,  indeed,  the 
general  language  throughout  the  cases,  seem  to  me  to  estab- 
lish this  point.  So  Lord  Hardwicke  observed,  in  Lord 
Townshend  v.  Wmdham,  that  "  he  knew  of  no  case  on  the 
13th  Eliz.  where  a  man,  indebted  at  the  time,  makes  a  mere 
voluntary  conveyance  to  a  child,  without  consideration,  and 
dies  indebted,  but  that  it  shall  be  considered  as  part  of  his 
estate  for"  the  benefit  of  his  creditors."  In  a  preceding  part 
of  the  *same  page,  he  said  expressly,  there  was  "no  such  [*505  | 
case,"  unless  the  conveyance  was  "  in  consideration  of  mar- 
riage, or  other  valuable  consideration ; "  and  he  draws  the 
distinction  between  prior  and  subsequent  creditors,  in  saying, 
that  if  the  voluntary  conveyance  of  real  estate,  or  a  chattel 
interest,  was  by  one  not  indebted  at  the  time,  and  was  for  a 
child,  and  no  particular  evidence  or  badge  of  fraud  as  against 
subsequent  creditors,  it  would  be  good.  The  decision  in 
that  case  was,  that  a  general  power  of  appointment  given 
over  an  estate,  in  lieu  of  a  present  interest  in  it,  having  been 
executed  voluntarily,  though  for  a  daughter,  was  to  be  deemed 
assets  in  favor  of  creditors. 

If  the  question  rests  not  upon  an  actual  fraudulent  intent, 
(as  is  admitted  in  all  the  cases.)  it  must  be  a  case  of  fraud  in 
law,  arising  from  the  fact  of  a  voluntary  disposition  of  prop- 
erty, while  indebted;  and  the  inference  founded  on  that  fact 
cannot  depend  on  the  particular  circumstances,  or  greater  or 
less  degree  of  pecuniary  embarrassment  of  the  party.  These 
are  matters  for  consideration,  when  we  are  seeking,  as  in  the 
case  of  subsequent  creditors,  for  actual  fraud.  I  apprehend 
'I  is,  upon  the  whole,  better  and  safer  not  to  allow  a  party  to 
yield  to  temptation,  or  natural  impulse,  by  giving  him  the 
power  of  placing  property  in  his  family  beyond  the  reach  of 

389 


505  CASES  IN  CHANCERY. 

1818.       existing  creditors.     He  must  be  taught  by  the  doctrines  ol 

^*~^~^~s  the  Court,  that  the  claims  of  justice  are  prior  to  those  of 

READS        affection.     The  inclination  of  my  mind  is  strongly  in  favor 

LIVINGSTON     °^  *ne  Poncv  and  wisdom  of  the  rule,  which  absolutely  disables 

a  man  from  preferring,  by  any  arrangement  whatever,  and 

with  whatever  intention,  by  gifts  of  his  property,  his  children 

to  his  creditors.     Though  hard  cases  may  arise  in  which  we 

should  wish  the  rule  to  be  otherwise,  yet,  as  a  permanent 

regulation,  more  good  will  ensue  to  families,  and  to  the  public 

at  large,  by  a  strict  adherence  to  the  rule,  than  by  rendering 

f  *  50G  ]       it  subservient  to  circumstances,  or  by  ^making  it  to  depend 

upon  a  fraudulent  intent,  which  is  so  difficult  to  ascertain, 

and  frequently  so  painful  to  infer. 

The  effect  of  these  donations,  by  a  debtor,  inter  vivos,  is 
much  discussed  by  Voet  in  his  Commentaries,  on  the  Digest, 
lib.  39.  tit.  5.  De  Donationibus,  s.  20. ;  and  he  concludes, 
that  the  property  in  the  hands  of  the  donee  is  chargeable 
with  the  existing  debts  of  the  donor.  Ex  eo  autcm,  quod 
donator  competently  gaudens  bcneficio  deducit  primo  tes  alienum, 
facilis  est  decisio  queestionis,  utrum  donatis  omnibus  bonis,  ant 
majore  corum  parte,  donatarius  ad  <zs  alienum  donatis  solvendum 
obligatus  sit  1 — -JEquum  hand  forct,  ex  Kberalitate,  defuncti 
crcditores  ejus,  donatione  antiquiores  (nam  qui  posted  demum 
credidcrunt,  ex  donatione  prcecedente  jam  perfecta  videri  ne- 
queunt  fraudati  esse)  crcdito  suo  defraudari,  satiusque  visum, 
donata  revocari  per  actionem  PauHanam,  etiam  a  donatario  in 
bona  jide  posito  ac  fraudis  hand  participe.  Dum  mclior  esse 
debuit  conditio  creditorum  de  damno  evitondo  agentiitm,  quam 
donatarii  agentis  de  lucro  captando. — Secundum  hodierni  juris 
simplicitatem  donatarium  a  creditoribus  donatoris  recta  via 
absque  circuitu  ad  solvendum  CES  alienum  donantis  compelh 
posse,  post  multos  alias  citatos  tradit  Gr&newegen,  ad  1.  28. 
ff.  h.  t. 

This  learned  civilian  makes  the  same  distinction  that  our 
law  does,  between  debts  existing  at  the  time,  and  debts 
created  subsequent  to  the  gift. 

The  same  doctrine,  on  this  subject,  in  all  essential  respects, 
is  adopted  in  France.  The  gift  of  specific  articles  does  not 
charge  the  donee  with  the  debts  of  the  donor,  unless  the 
latter  knew,  or  ought  to  have  known,  that  he  was  not  solvent 
at  the  time ;  in  which  case  the  gift  is  held  to  be  fraudulent. 
But  in  other  more  general  dispositions  of  the  whole,  or  part, 
of  his  estate,  the  property  in  the  hands  of  the  donee  is  sub- 
ject to  the  existing,  though  not  to  the  future,  debts,  to  the 
[*  507]  value  of  the  gift.  (Traite  Des  Donat.  *enter  vifs.  sect.  3. 
art.  1.  <§>  2.  (Euvres  posth.  de  Pothier,  torn.  6.) 

The  question  does  not  arise,  in  this  case,  as  to  what  extent 
390 


CASES  IN  CHANCERY.  olfi 

these   voluntary  dispositions  of  property  can   be   reached.        1818. 
Here  the  land  itself  exists  in  the  hands  of  the  trustee  for  ^^-^->^ 
the  wife;  and  we  have  no  concern,  at  present,  with  the       READE 
question,  how  far  gifts  of  chattels,  of  money,  of  choses  in    LIVINGS™* 
action,  of  corporate,  of  public  stock,  or  of  property  alienated 
to  a  bona  fide  purchaser,  can  be  affected.     The  debt  in  the 
present  case  was  large,  and  the  disposition  extravagant,  being 
of  the  greater  part  of  the  real  estate ;  and  we  have  no  evi- 
dence of  sufficient  property  left  unencumbered.     Even  if 
we  were  to  enter  into  the  particular  circumstances  of  the 
case,  I  should  have  no  doubt  of  the  justice  of  the  creditor's 
claim. 

I  shall,  accordingly,  decree,  that  a  reference  be  had  to 
ascertain  the  balance  of  principal  and  interest  due  to  the 
plaintiff,  and  that  so  much  of  the  lands,  included  in  the  con- 
veyance to  Gilbert  Aspinwall,  as  the  master  shall  judge  suffi- 
cient to  satisfy  that  amount,  with  costs,  be  sold ;  and  that  the 
said  G.  A.  be  directed  to  join  in  the  conveyance,  &c. 

Decree  accordingly,  (a) 

(«)  In  Battersbec  v.  Farrington,  (1  Swanton,  106.  1  Wilson,  88.  S.  C.)  de- 
cided by  the  master  of  the  rolls,  in  February,  1818,  it  was  considered  as  a  point 
fully  established,  that  a  voluntary  settlement,  without  fraud,  by  a  husband 
not  indebted,  in  favor  of  his  wife  and  children,  was  good  against  subsequent 
creditors.  In  this  case,  no  creditor  attempted  to  impeach  the  settlement, 
though  the  suit  had  been  pending  five  years ;  nor  was  there  any  suggestion, 
that  the  husband  was  indebted  at  the  time  of  the  settlement.  It  was  further 
held,  that  a  recital  in  a  post-nuptial  settlement  of  ante-nuptial  articles,  was 
conclusive  against  all  persons  claiming  under  the  settlement,  but  not  evi- 
dence against  creditors,  without  other  distinct  proof;  because  such  a  doc- 
trine would  give  to  every  trader  a  power  of  excluding  his  creditors,  by  a 
recital  in  a  deed  to  which  they  are  not  parties.  This  case,  which  was  not 
Been  by  the  chancellor,  at  the  time  his  opinion  was  delivered,  confirms  every 
branch  of  the  doctrine  contained  in  the  above  decision. 

391 


508*  CASES  IN  CHANCERY. 

1818. 
PERIN£  *C.  &  S.  S.  FERINE  against  DUNN. 

V. 

DCNN.  [See  5  Johns.  Ch.  489.] 

A  voluntary  deed,  not  delivered  to  the  grantee,  and  kept  concealed  from 
the  public  for  near  eighteen  years,  during  which  time  the  grantor  re- 
mained in  possession  of  the  premises,  as  owner,  cannot  be  set  up 
against  a  third  person  dealing  with  the  grantor,  as  owner,  although  lie 
may  have  heard  of  the  existence  of  the  deed,  at  the  time  he  took  his 
mortgage.  But  the  grantee,  being  the  heir  at  law  of  the  grantor,  has 
a  right  to  redeem. 

Advancing  money  to  a  poor  man,  to  enable  him  to  prosecute  his  suit,  is 
not  mamtcnance. 

June  23  and  THE  bill  stated,  that  Simon  Swaim,  father  of  the  plaintiff, 
fytjrtSeptem-  Catharine  Ferine,  and  grandfather  of  the  plaintiff,  Simon  S. 
Ferine,  being  seised  of  a  farm  in  Richmond  county,  and  being 
about  to  marry  a  second  wife,  the  widow  Dorothy  G.,  who, 
having  a  considerable  estate,  had,  i'n  contemplation  of  the 
marriage,  with  the  knowledge  and  assent  of  S.  S.,  conveyed 
it  to  the  use  of  her  children,  in  consequence  thereof,  and  in 
contemplation  of  the  said  marriage,  and  in  consideration  of 
natural  love  and  affection  for  the  plaintiff  Catharine,  his  only 
child,  did,  by  his  deed,  bearing  date  the  14th  of  November, 
1794,  convey  the  farm  in  fee,  with  covenants  as  to  the  title, 
&c.,  to  his  daughter,  the  said  Catharine,  then  the  wife  of 
Joseph  Ferine,  since  deceased.  That  £.  S.  soon  after  mar- 
ried Dorothy  G.  That  the  deed  was  acknowledged  on  the 
19th  of  January,  1802,  and  recorded  in  the  office  of  the  clerk 
of  the  county  on  the  13th  of  November,  1805.  That  C.  P. 
and  her  husband  permitted  S.  S.  to  continue  in  possession 
of  the  farm,  as  tenant  at  will,  or  sufferance,  until  1812,  when 
the  plaintiff  C.  P.  and  her  husband  took  possession,  by 
putting  the  plaintiff  &  S.  P.  into  possession  as  their  tenant, 
excepting  a  small  part  of  the  dwelling-house,  in  which  S.  S. 
was  still  permitted  to  continue  with  his  family.  That  the 
tenant,  by  the  directions  of  C.  P.  and  her  husband,  has 
[  *  509  ]  *furnished  *S.  S.,  gratis,  with  such  reasonable  portion  of  the 
proceeds  of  the  farm  as  was  thought  necessary  for  his  com- 
fortable subsistence.  That  when  S.  S.  executed  the  deed 
to  C.  P.,  he  was  not  indebted,  and  was  possessed  of  other 
real  estate  in  Richmond  county.  That,  in  consequence  of 
the  injurious  conduct  of  S.  S.  and  his  wife,  in  relation  to  the 
farm,  and  their  vexatious  conduct  towards  the  tenant,  the 
plaintiff  C.  and  her  husband  brought  an  action  of  ejectment, 
in  1813.  against  S.  S.,  to  recover  that  part  of  the  dwelling- 
house  in  his  possession,  (which  suit  abated  by  the  deith  ot 
S.  S.  in  April,  1816.)  That  on  the  28th  of  December,  1813, 
392 


CASES  IN  CHANCERY.  r>09 

C.  P.  and  her  husband  filed  a  bill  against  S.  S.  and  wife,  and  1818. 
ihe  defendant,  alleging  waste  and  praying  an  injunction,  ^*^^~++^ 
&c.  (a)  That  in  March,  1814,  S.  S.  filed  his  bill  against  FERINE 
C.  P.  and  her  husband,  and  S.  S.  P.,  to  set  aside  the  deed  DuvNN 
of  the  14th  of  November,  1794,  on  the  ground  of  ignorance 
and  fraud,  in  obtaining  possession  of  it,  and  praying  an  in- 
junction to  stay  the  ejectment  suit.  That  before  appearance, 
the  husband  of  C.  died,  and  the  suit  was  continued  against 
the  surviving  defendants,  who  appeared  and  answered,  and 
the  injunction  was  dissolved.  That  since  filing  the  bill  in 
December,  1813,  and  pending  that  suit,  the  defendant  has 
fraudulently  obtained  from  &  S.  a  deed  of  all  his  real  estate, 
not  previously  conveyed  to  C.,  and  a  bond  for  1 ,000  dollars, 
and  a  judgment  thereon,  and  also  a  mortgage  from  S.  S. 
and  his  wife,  of  the  premises  before  conveyed  to  C.,  for  better 
securing  the  payment  of  the  1,000  dollars.  That  the  de- 
fendant, when  he  took  the  mortgage,  knew  of  the  prior  deed 
of  1797  to  C.  P.,  and  that  &  S.  P.  occupied  the  premises 
as  her  tenant.  That  no  part  of  the  sum  mentioned  in  the 
bond,  judgment  and  mortgage  was,  in  fact,  due  to  the  de- 
fendant ;  but  the  same  were  executed  fraudulently,  in  order 
to  defeat  the  title  of  C.,  and  to  disturb  *the  possession  of  [  *510J 
&  S.  P.  That  the  defendant  issued  a  fi.  fa.  on  the  judg- 
ment, on  which  the  sheriff  sold  some  household  furniture  of 
iS1.  S.  That  the  defendant  directed  the  sheriff  to  levy  on 
the  real  estate  conveyed  to  C.  P.,  which  he  refused  to  do, 
unless  indemnified,  and  returned  the  execution  nulla  bona, 
beyond  the  personal  property  sold  ;  and  the  defendant,  there- 
fore, brought  an  action  against  the  sheriff  for  a  false  return. 
That  the  defendant  brought  an  action  of  ejectment,  founded 
on  the  mortgage,  against  S.  S.  and  S.  S.  P. ;  but  his  attorney 
having  refused  to  exchange  consent  rules,  in  which  C.  was  to 
be  made  defendant,  the  cause  remains  pending,  which  the 
plaintiffs  allege  was  evidence  of  fraud  between  <S.  S.  and  the 
defendant,  to  subvert  the  title  of  C.,  and  that,  in  pursuance 
of  this  fraudulent  combination,  the  defendant  had  advertised 
the  premises  for  sale,  under  a  power  contained  in  the  mort- 
gage, on  the  1st  of  April,  1816.  That  S.  S.,  before  the  date 
of  the  bond  and  mortgage,  by  age,  was  impaired  in  mind, 
ind  not  competent  to  transact  moneyed  concerns,  and  had 
become  an  instrument  to  promote  the  fraudulent  views  of 
the  defendant.  That  if  the  mortgage  be  valid  security  for 
any  sum  due,  the  plaintiff  C.  wished  to  redeem,  after  her 
title  should  be  established  in  the  suits  now  pending,  &c. 
The  plaintiffs  prayed  that  the  bond  and  judgment  of 

(a)  Vide  2  Jo/ins.  Ch.  Rep.  475.     The  bill  was  dismissed  in  June,  1817,  on 
payment  of  costs. 

VOL.  III.  50  393 


510  CASES  IN  CHANCERY. 

1818.       &•  S-  1°  the  defendant  may  be  set  aside,  or  declared  vom. 

V^X-N^-^-'  as  respected  C.  and  her  land ;  and  that,  if  they  should  be 
FERINE       deemed  valid  Hens  on  the  land,  that  an  account  should  be 
DUNN.        taken  of  what  was  due  to  the  defendant,  for  which  he  had 
such  lien,  and  that  C.  be  let  in  to  redeem  ;  and  that  an  in- 
junction might  issue  to  restrain  any  execution  or  sale  on  the 
judgment,  or  under  the  mortgage,  or  from  further  prosecuting 
the  sheriff  for  a  false  return,  or  proceeding  in  the  action  of 
ejectment,  &c. 

The  defendant,  in  his  answer,  stated,  that  when  S.  S.  was 
about  to  be  married  to  Dorothy  G.}  Joseph  Ferine,  the  hus- 
band of  C.,  with  her  knowledge,  taking  advantage  of  the 

f  *  511  ]  ignorance  of  S.  S.,  and  of  his  confidence  in  them,  C.  *being 
his  only  child,  prevailed  on  him  secretly  to  execute  a  deed, 
without  examination,  for  the  purpose  of  defrauding  Dorothy 
of  her  dower.  That  J.  P.  represented  to  S.  S.,  that  the 
deed  would  only  bar  D.  of  her  dower,  and  not  deprive  him 
of  the  enjoyment  of  the  property  during  his  life ;  and  that 
&  S.  might  keep  possession  of  the  deed,  and  revoke  it  at 
his  pleasure  ;  and  that,  with  such  understanding,  he  executed 
the  deed.  That  J.  P.  enjoined  secrecy,  and  that  S.  S.  made 
such  explanations  to  the  witnesses,  and  enjoined  secrecy  on 
them.  That  the  deed  was  not  delivered  to  C.,  or  to  any 
person  for  her,  but  was  given  to  one  of  the  witnesses  to  keep. 
That  S.  S.,  afterwards,  on  the  same  day,  was  married.  That 
he  retained  the  deed  in  his  possession,  until  it  was  surrep- 
titiously obtained  from  him  by  J.  P.  That,  about  eight  years 
after  the  execution  of  the  deed,  J.  P.  prevailed  on  £.  £.  to 
go  before  a  judge  and  acknowledge  the  deed,  which  he  did 
in  a  secret  manner,  and  with  the  belief,  that  his  doing  so 
would  not  give  any  greater  validity  to  the  deed ;  that  J.  P., 
being  the  clerk  of  the  county,  fraudulently  and  secretly  took 
the  deed  from  S.  S.,  and  secretly  recorded  it,  as  mentioned 
in  the  bill,  but  purposely  omitted  to  enter  it  in  the  index  to 
the  book  of  records  for  the  purpose  of  concealing  the  record  : 
and  he,  afterwards,  denied  that  it  was  recorded.  That  J.  P., 
immediately  after  he  had  so  recorded  the  deed,  returned  it 
to  the  possession  of  S.  S.  before  he  had  missed  it,  and  S.  S. 
kept  it  in  his  possession  until  the  summer  of  1811,  when 
J.  P.  requested  of  *S*.  S.  permission  to  see  it,  and  then  fraud- 
ulently kept  it,  and  never  returned  it  to  S.  S.,  but  made  use 
of  it,  in  order  to  turn  S.  S.  out  of  the  premises.  That  S.  S. 
afterwards  demanded  the  deed,  and  its  delivery  back  to  him  ; 
and  then  J.  P.,  for  the  first  time,  laid  claim  to  the  premises 
by  virtue  of  the  deed,  being  nearly  twenty  years  after  its 
execution. 

The  defendant  denied  that  the  plaintiff  C.,  and  her  hus 
394 


CASES  IN  CHANCERY.  *512 

band,  ever  permitted  S.  >$*.  to  remain  in  possession,  or  that  1813. 
*he  held  possession,  as  tenant,  or  that  C.  had  any  right  to 
the  premises,  except  as  heir  of  S.  S.  He  denied  that  ( . 
and  her  husband  ever  put  the  grandson  into  possession,  and 
alleged  that  S.  S.  was  in  full  possession,  until  the  grandson 
was  employed  to  work  on  the  farm  upon  shares.  That  in 
1812,  the  grandson  informed  S.  S.  that  he  was  about  to  be 
married,  and  requested  permission  to  live  in  part  of  the  house, 
and  to  work  on  the  farm,  for  half  the  produce,  as  a  compen- 
sation for  his  labor ;  that  S.  S.  acceded  to  the  proposal ;  and 
the  grandson,  for  a  year,  divided  the  produce  of  the  farm, 
and  then,  in  concurrence  with  C.  and  her  husband,  refused 
any  longer  to  comply  with  the  agreement,  and  retained  all 
the  produce  of  the  farm,  and  refused  all  necessary  relief  and 
support  to  S.  S.,  &c.  &c.  That  the  defendant,  at  the  re- 
quest of  S,  S.,  cut  some  firewood  for  S.  S.,  and  the  grandson 
forbade  it.  and  the  plaintiff  C.  and  her  husband  then  brought 
three  actions  of  trespass  against  the  defendant,  in  the  Su- 
preme Court,  and  filed  a  bill  in  chancery  for  an  injunction  to 
stay  waste,  and  the  injunction  was  issued,  saving  reasonable 
estovers.  That  in  December,  1813,  a  short  time  before,  C. 
and  her  husband  brought  the  action  of  ejectment  against 
S.  S. ;  and  these  suits  were  commenced  in  order  to  harass 
and  terrify  S.  S.  into  a  compliance  with  their  views,  and  to 
a  surrender  of  his  rights. 

The  defendant  admitted,  that  he  obtained  from  S.  S.  the 
bond  for  1,000  dollars,  dated  7th  of  February,  1814,  and  a 
mortgage  and  judgment ;  but  denied  that  he  knew,  when  he 
took  the  mortgage,  that  the  premises  had  been  conveyed  to 
C.,  and  he  denied  that  the  grandson  was  in  possession  at  the 
time,  except  as  a  tenant.  That  before  he  ever  heard  of  the 
deed  of  1794,  S.  S.  became  indebted  to  the  defendant  in  a 
considerable  sum,  as  well  as  to  other  persons,  on  the  credit 
of  the  farm  in  his  possession.  That  after  the  deed  became 
known,  three  suits  were  commenced  against  S.  S.  for  these 
debts,  as  well  as  the  other  *suits  by  C.  and  her  husband;  [*513 
that  the  defendant  applied  to  S.  S.  for  security  for  his  debt, 
and  S.  S.  promised  to  give  him  a  mortgage  on  the  farm,  pro- 
vided he  would  advance  money  to  supply  his  wants,  and 
become  security  to  pay  the  money  necessary  to  defend  the 
suit,  &c. 

That  /.  P.  acknowledged  that  the  deed  was  given  to  defeat 
Dorothy  of  her  dower ;  that  believing  the  deed  to  be  fraud- 
ulent, and  being  desirous  to  secure  the  money  due  to  him. 
and,  also,  to  assist  S.  S.  in  his  distress,  the  defendant  agreed 
to  advance  such  sums,  and  to  pay  such  further  sums  for  S.  S. 
as  would  make  his  demand  1,000  dollars,  and  take  a  mort- 

395 


513  CASES  IN  CHANCERY. 

1818.       ga§e-     That,  accordingly,  on  the  7th  of  February,  1814,  a 

\^-^-^^   bond  was  executed  for  that  sum,  payable  the  1st  of  April 

FERINE       following,  and  also  a  mortgage,  which  was  recorded  the  25th 

Dn\w  of  April,  1815,  after  the  death  of  J.  P.  That  the  defendant 
gave  *S*.  tS*.  a  note  for  125  dollars,  which  he  has  since  paid  ; 
and  he  covenanted  to  pay  the  amount  of  637  dollars  and 
41  cents,  costs,  which  *S\  *$'.  might  be  bound  to  pay,  in  the 
suits  which  C.  and  her  husband  had  instituted  against  him, 
being  three  suits  in  the  Court  of  Common  Pleas,  three  in  the 
Supreme  Court,  and  one  in  Chancery,  and  also,  the  costs  of 
the  suit  in  Chancery  about  to  be  commenced  by  S.  S.  That 
a  very  considerable  part  of  the  637  dollars  and  41  cents  has 
been  paid  by  the  defendant,  and  he  has  become  absolutely 
bound  to  pay  the  residue  of  it.  That  the  two  sums  of  125 
dollars,  and  637  dollars  and  41  cents,  together  with  what 
S.  S.  owed  to  the  defendant,  amounted  to  the  exact  sum  of 
1 ,000  dollars.  That  £.  S.  was  too  poor  to  retain  counsel  to 
carry  on  his  suit,  and  to  obtain  the  testimony  of  some  of  the 
witnesses.  That  he,  on  the  21st  of  April,  1815,  confessed 
judgment  on  the  bond  to  the  defendant,  and  an  execution 
was  issued,  on  which  personal  property  was  taken  and  sold, 
to  the  amount  of  125  dollars  and  77  cents,  which  the  de- 
fendant credited  &  S.,  and  suffered  *S'.  S.  to  use  the  property, 
out  of  compassion.  That  the  defendant  directed  the  sheriff 
[*514]  to  *levy  on  the  farm  in  question,  which  he  refused  to  do 
without  indemnity,  and  the  defendant  sued  him  for  a  false 
return ;  that  the  defendant,  afterwards,  brought  an  action  of 
ejectment,  which  was  stayed  by  an  injunction  in  this  cause ; 
and  the  defendant  then  sought  to  foreclose  the  mortgage  by 
advertising  a  sale  under  the  power.  That  S.  S.  was  fully 
competent  when  he  gave  the  bond  and  mortgage,  and  exe- 
cuted them  with  full  knowledge  and  understanding,  and 
retained  his  faculties  until  his  death,  &c. 

About  thirty  witnesses  were  examined  on  each  side,  and  a 
great  mass  of  evidence  taken  in  the  cause,  some  of  which 
was  contradictory.  The  material  facts  proved,  are  sufficiently 
stated  by  the  Court. 

n_Junt  23,  24,       The   cause   was   argued  in  June   last,  by  Riggs   for  the 
2o,  26,  27,  and  p]amtjffs .  an(j  j-jy  /%,//{$  and  Baldwin  for  the  defendant. 

September  28.        The  cause  stood  over  for  consideration  until  this  day. 

THE  CHANCEJ  LOR.  The  plaintiff  Catharine  seeks  to  set 
aside,  as  void,  the  mortgage  and  judgment  given  to  the  de- 
fendant by  her  father,  Simon  Swaim ;  but  if  either  of  them 
were  to  be  regarded  as  valid  liens,  she  then  prays  that  an 
396 


CASES  IN  CHANCERY.  514 

acco/mt  may  be  taken  of  what  is  due  upon  such  lien,  and        1818. 
that  she  may  be  let  in  to  redeem.  s_*»~\^—^ 

She  rests  her  claim  to  set  aside  the  mortgage,  &c.  on  her       PF.RIN-E 
title,  as  owner  of  the  land,  under  a  deed  from  her  father  of        Dl^y 
the  14th  of  November,  1794.     The  bill  was  originally  against 
him,  as  well  as  Dunn,  the  mortgagee :  but  Swaim  dying  before 
the  answers  came  in,  it  was  admitted  on  the  part  of  the 
present  defendant,  that  the  plaintiff  Catharine  was  his  only 
child  and  heir  at  law.     Her  title  to  the  land,  subject  to  the 
encumbrance,  is  indisputable.     She  inherits  a  title  to  it  as 
heir,  if  she  had  not,  before,  a  title  to  it  by  deed. 

The  defendant  holds  a  bond  and  mortgage  executed  to 
him  by  Simon  Swaim,  in  February,  1814,  for  1,000  dollars, 
*and  the  main  question  is,  whether  that  mortgage  be  a  valid  [  *  515 
lien  on  the  lands  claimed  by  the  plaintiff.  The  judgment 
which  the  defendant  afterwards  obtained,  was  for  the  same 
mortgage  debt,  and  was  confessed,  in  order  to  facilitate  the 
recovery,  and  it  may  be  placed  out  of  view  in  respect  to  the 
present  inquiry. 

1.  The  first  point  is,  whether  the  plaintiff  Catharine  had, 
at  the  time  the  mortgage  was  taken,  a  valid  title  to  the  land, 
under  her  deed  of  1794,  so  as  to  defeat  the  claim  under  that 
mortgage. 

The  deed  of  1794  was  executed  on  the  day  that  Simon 
Swaim  married  his  second  wife,  Dorothy,  and  it  was  executed 
a  short  time  previous  to  the  marriage.  It  was  a  voluntary 
conveyance,  without  any  valuablr  consideration ;  it  was  con- 
cealed from  the  wife,  and  its  object  was  to  cut  off  her  claim 
for  dower,  if  she  should  survhe  her  husband. 

This  deed,  as  I  conclude  from  the  case,  was  executed 
under  the  influence  of  the  plaintiff  Catharine  and  her  hus- 
band, and  it  was  not  intended,  by  any  of  the  parties  in  in- 
terest, to  go  into  operation  until  the  death  of  Swaim.  It  was 
not  delivered  to  the  daughter,  but  to  one  of  the  subscribing 
witnesses.  It  was  intended  to  be,  and  for  upwards  of  eighteen 
years  afterwards  continued  to  be,  a  transaction  concealed 
from  the  world.  The  grantor  continued  in  possession  of 
the  farm,  and  acted  as  owner,  and  was  reputed,  and  had 
credit  as  owner,  from  the  date  of  the  deed  in  1794,  down  to 
the  year  1813,  when  the  family  quarrel  first  broke  out,  and 
the  claim  under  the  deed  was  first  publicly  advanced. 

It  will  not  be  necessary  for  me  to  go  minutely  through  the 
volume  of  testimony  which  has  been  compiled  in  this  case. 
A  great  part  of  it  might  have  been  spared,  for  it  is  idle  and 
useless  repetition.  My  impression  is  very  strong,  that  the 
deed  was  of  the  character  I  have  mentioned,  and  was  in- 
.ended  by  all  the  parties  concerned  to  be  kept  secret,  *and  [  *  516  ] 

,397 


516  CASES  IN  CHANGER*. 

1818.  was  studiously  concealed  from  the  knowledge  of  the  public 
s^~^-^^x  from  the  time  of  its  execution,  down  to  1813.  I  am  equally 
FERINE  clear  in  my  conviction,  that  the  deed  was  taken  into  the 
permanent  possession  of  Catharine's  husband,  contrary  to  the 
intention,  and  without  the  consent  of  the  grantor,  and  that 
he  never  intended  to  abandon  the  possession,  or  his  right  to 
the  enjoyment  of  the  farm.  His  object,  in  admitting  his 
grandson  into  the  possession,  in  1812,  was  not  that  he  was 
to  occupy  as  tenant  to  Joseph  and  Catharine  Ferine,  or 
either  of  them,  but  that  his  grandson  might  assist  him  in  the 
management  of  the  farm,  which  he  felt  himself  unable  to 
manage,  through  the  feebleness  of  age.  His  grandson  came 
in  under  him,  for  that  purpose,  and  he  was  admitted  to  share 
equally  in  the  profits,  as  a  compensation  for  his  services. 
The  subsequent  efforts  on  the  part  of  Joseph  and  Catharine 
P.  and  their  son,  to  deprive  Simon  Swaim  of  the  possession 
and  use  of  the  farm,  and  to  separate  him  from  the  society 
and  assistance  of  his  wife,  were  violent,  unnatural,  and  unjust. 
I  think  I  do  not  use  epithets  that  are  not  well  warranted. 
The  case  strikes  me  in  this  light,  after  noticing  the  object 
and  history  of  the  deed,  and  after  reading  and  comparing 
the  testimony. 

A  voluntary  deed  executed  for  such  a  purpose,  and  not 
delivered  to  the  grantee,  but  kept  concealed,  and  unac- 
companied with  delivery  of  possession,  cannot  be  set  up 
against  any  third  person  dealing  with  Swaim,  as  owner.  I 
state  this  as  a  clear  and  obvious  principle  of  law  and  policy  ; 
and  it  is  perfectly  immaterial  whether  rumors  of  the  existence 
of  the  deed  did  or  did  not  come  to  the  knowledge  of  such 
third  person.  He  was  not  bound  to  listen  to  the  rumor,  nor 
to  give  credit  to  such  a  deed.  Lord  Hardwicke  considered. 
(1  Afk.  16.)  that  a  continuance  in  possession,  after  a  volun- 
tary deed,  was  a  strong  circumstance  of  fraud.  The  rule  on 
this  subject  was  correctly  stated  by  Lord  Rosslyn,  in  Bates 
[  *  517  1  v.  Graves.  (2  Vesey,jun.  *292.)  He  says,  "  that  where  there 
is  a  conveyance  of  an  estate,  and  possession  is  retained, 
towards  all  third  persons,  the  person  to  whom  it  is  conveyed 
will  not  be  allowed  to  be  considered  as  owner,  nor  will  the 
ownership  be  devested."  The  Court  of  Chancery,  according 
to  the  cases,  (Pulvertoft  v.  Puhertoft,  18  Vesey,  84;  Smith 
v.  Garland,  2  Merrivale1  s  Rep.  123.)  will  not  act  in  favor  of, 
or  help  a  voluntary  conveyance,  but  will  remain  neutral  in 
respect  to  it ;  and  surely  this  course  will  be  adopted,  when 
the  conveyance  has  such  a  fraudulent  stamp,  and  has  been 
so  kept  and  applied  as  the  one  in  questipn. 

In  this  case,  the  claim  under  the  voluntary  conveyance 
was  set  up  before  the  existence  of  the  mortgage ;  but  vhen 
398 


CASES  IN  CHANCERY.  51"7 

we  consider  the  history  of  the  deed,  and  the  circumstances        1818. 
under  which  the  claim  has  been  made,  the  priority  of  the  -^^~v^^ 
claim  cannot  give  the  deed  any  additional  force,  as  respects       FERINE 
third  persons.     The  grantor  never  gave  possession  under  the        Dl^N 
deed,  but,  to  the  day  of  his  death,  he  resisted  the  pretension 
under  it,  as  unjust  and  fraudulent.     Such  a  deed  cannot  be 
permitted  to  have  any  operation  in  this  Court,  as  against  the 
rights  of  the  defendant.     It  was  made,  and  kept  concealed, 
and  then  finally  acquired,  and  used  for  unjust  or  uncon- 
scientious  purposes.     The  bond  and  mortgage  ought  to  be 
tested  by  their  own  intrinsic  merits,  and  not  be  suffered  to  be 
affected  by  that  deed  in  any  possible  degree. 

2.  Putting  the  deed  entirely  out  of  view,  the  next  question 
is,  Upon  what  terms  is  the  plaintiff  Catharine,  as  heir  at  law, 
entitled  to  redeem  ? 

A  great  deal  oi  testimony  has  been  taken  respecting  the 
competency  of  Simon  Sivaim  to  transact  business,  in  February, 
1814,  when  he  gave  the  bond  and  mortgage  to  the  defendant. 
My  conclusion  is,  that  he  was  of  competent  mind  and  mem- 
ory, and  that  he  acted  knowingly  and  understandingly,  when 
he  executed  those  instruments.  There  would  be  no  safe 
dealing  among  men,  and  especially  with  men  in  the  decline 
of  life,  if  solemn  contracts  can  *be  annulled  upon  such  loose  *  518  J 
and  vague  opinion  as  is  offered  in  this  case,  to  prove  a  want 
of  sanity  in  the  mortgagor.  The  ordinary  infirmities  of  age, 
and  occasional  acts  of  intemperance,  are  not  sufficient  to 
impeach  a  deed,  when  no  unfair  practices  have  been  used, 
and  especially  when  it  is  shown  as  a  positive  fact,  that 
the  party  was  competent,  and  understood  himself  well  at 
the  time. 

It  is,  next,  urged,  that  a  part  of  the  consideration  of  the 
bond  was  illegal,  and  founded  on  the  offence  of  mainte- 
nance, being  for  pecuniary  assistance  given,  or  pledged, 
for  the  costs  of  the  lawsuits  in  which  Simon  Swaim  was 
involved. 

The  bond  was  given  partly  for  moneys  due  to  the  defend- 
ant, and  partly  for  assistance  given  to  Swaim,  to  enable  him 
to  defend  himself  at  law  and  equity,  in  the  possession  and 
use  of  his  farm.  The  defendant  agreed  to  pay  637  dollars 
41  cents,  towards  costs  of  suits,  in  which  Swaim  was  a  party, 
and  he  gave  a  note  for  that  sum  to  Mr.  Wallis.  But  under 
the  circumstances  of  the  case,  at  the  time,  it  was  so  far  from 
being  illegal,  or  amounting  to  the  common  law  offence  of 
maintenance,  that  it  was  a  very  meritorious  and  commendable 
act  of  charity.  The  situation  of  Swaim  was  one  of  great 
distress,  and  which  naturally  excited  sympathy.  He  was 
deprived  of  credit  and  resources,  and  almost  cut  off  from 

399 


518  CASES  IN  CHANCERY. 

1818.       tne  common  necessaries  of  life,  by  the  efforts  of  his  daughter 
N^^-N^-^^  and  of  her  husband  and  son,  to  deprive  him  of  his  farm,  and 
FERINE       separate  him  from  his  wife.     He  might  justly  have  taxed  his 
DUNN         daughter  with  wikindness ;  and  assistance,  at  such  a  crisis,  by 
the  son  of  his  wife,  was  an  act  of  benevolence  that  must 
have  been  most  grateful  to  his  feelings.     To  hold  the  as- 
sistance given  by  the  defendant  unlawful,  would,  as  Mr.  J. 
Buller  observed   when   speaking   of  the  harshness  of  the 
ancient  doctrine  of  maintenance,  be  "  repugnant  to  every 
honest  feeling  of  the  human  heart."     It  is,  accordingly,  now 
[  *  519]       held  to  be  the  law,  (Hawk.  PL  C.  tit.  Maintenance,  **.  20. 
26 ;  4  Black.   Com.  134.)  that  any  one  may  lawfully  give 
money  to  a  poor  man,  to  enable  him  to  carry  on  his  suit ; 
and  that  whoever  is,  in  any  way,  of  kin  or  affinity  to  ei- 
ther of  the  parties,  may  assist  him,  or  apply  to  counsel  to  as- 
sist him. 

I  shall,  accordingly,  declare,  that  the  plaintiff  cannot  be 
let  in  to  redeem,  but  on  paying  the  sum  due  upon  the  bond 
and  mortgage,  and  including  therein,  as  a  valid  part  of  the 
consideration,  the  costs  which  the  defendant  has  paid,  or 
engaged  to  pay,  for  Swaim ;  and  upon  paying,  also,  the  costs 
of  this  suit,  and  the  costs  of  the  action  of  ejectment,  brought 
by  the  defendant  upon  the  mortgage ;  and,  also,  the  costs  of 
he  proceeding,  under  the  power  to  sell,  contained  in  the 
mortgage.  In  respect  to  the  judgment  and  the  execution, 
I  shall  perpetually  enjoin  any  further  proceeding  thereon. 
A  reference  must,  accordingly,  be  had,  to  compute  the 
amount  due  on  the  bond  and  mortgage,  after  crediting  the 
plaintiff  with  any  payments  shown  to  have  been  made  thereon, 
or  with  any  moneys  collected  upon  the  execution. 

Decree  accordingly. 
400 


CASES  IN  CHANCERY.  519 

1818. 

LEWIS 

LEWIS  against  LEWIS.  LKWIS. 

On  a  bill,  by  a  husband,  for  a  divorce,  the  wife  will  not  be  allowed  ali- 
mony, nor  will  the  Court,  on  her  motion,  order  the  husband  to  ad- 
vance money  to  enable  her  to  defend  the  suit,  until  she  has,  by  her 
answer,  disclosed  the  nature  of  her  defence. 

BILL  by  the  husband  for  a  divorce. 

Burr,  for  the  defendant,  on  petition  by  her,  moved  for      Octob»-  *> 
:  order  on  the  husband  for  alimony,  and  for  the  advance 
*of  money  requisite  to   enable  her  to   make  her  defence.       [  *  520  l 
She  stated,  that  she  had  three  children,  and  had  lived  sep- 
arate and  apart  from  the  plaintiff  since  1806,  and  charged 
him  with  cruel  usage  and  with  adultery.     She  had  entered 
her  appearance  to  the  suit  this  day. 

THE  CHANCELLOR  denied  both  parts  of  the  motion.  He 
said,  that  it  was  necessary  that  the  wife  should  previously 
disclose,  by  her  answer,  the  nature  of  her  defence ;  for  as 
yet  it  did  not  appear  whether  she  intended  to  defend  herself 
against  the  charge  in  the  bill.  And  until  the  facts  in  the  bill 
were  put  in  issue,  he  did  not  incline  to  allow  her  alimony ; 
especially  considering  the  long  previous  separation  of  the 
parties,  and  that  she  had  not  stated  that  she  stood  in  need 
of  any  allowance. 

Motion  denied,  (a) 

(a)  Vide  Mix  v.  Mix,  1  Johns.  Ch.  Rep.  108.     Denton  v.  Denton,  id.  364. 

VOL.  III.  51  401 


520 


CASES  IN  CHANCERY 


1818. 

*^s~*+ 
GOODRICH 

v. 
PENDLETOH. 


October  6. 


[  *  521  ] 


GOODRICH,  Administrator,  against  PENDLETON. 

[Referred  to,  7  Stew.  (N.  J.)  492.] 
A  plaintiff  suing,  in  autre  droit,  is  not  responsible  for  costs,  unless  nuclei 

special  circumstances. 
The  defendant  is  not  entitled  to  security  for  costs  from  a  non-resident 

plaintiff,  suing  as  administrator,  especially  after  a  plea. 
If  the  non-residence  of  the  plaintiff  appears  on  the  face  of  the  bill,  and 

the  defendant  demurs,  pleads,  or  takes  any  other  step  in  the  cause,  or 

even  prays  for  time  to  answer,  it  is  a  waiver  of  his  right  to  security 

for  costs. 

MOTION  by  the  defendant,  that  the  plaintiff,  who  resides 
in  the  state  of  Georgia,  may  give  security  for  costs,  in  500 
dollars,  or  other  sum,  sufficient  to  indemnify  the  defendant, 
who  will,  necessarily,  be  put  to  very  considerable  expense  in 
the  defence  of  the  suit. 

*Riggs  and  Boyd,  contra,  on  the  ground,  1.  That  the 
plaintiff  sues  as  administrator;  2.  That  the  defendant  has 
already  put  in  a  plea  of  the  statute  of  limitations,  which  has 
been  argued  and  overruled,  and  the  non-residence  of  the 
plaintiff  appeared  on  the  face  of  the  bill.  (Vide  ante,  p. 
384.  S.  C.) 

THE  CHANCELLOR.  Both  of  the  objections  are  well  taken. 
The  plaintiff  who  sues  en  autre  droit,  is  not  responsible  for 
costs,  if  he  fails,  except  under  special  circumstances  ;  and  he 
ought  not  to  be  obliged  to  enter  into  personal  security,  in 
the  first  instance.  The  defendant  has,  moreover,  waived  his 
right  to  such  security  by  his  plea.  The  rule  is,  that  if  the 
non-residence  of  the  plaintiff  appears,  on  the  bill,  the  de- 
fendant waives  his  title  to  security  for  costs,  if  he  takes  any 
step  in  the  cause,  or  even  prays  time  to  answer.  (2  Vcsey, 
24.  10  Vesey,jun.2Sl.}  In  Long  v.  Tardy,  (1  Johns.  Ch. 
Rep.  202.)  a  demurrer  by  the  defendant  was  held  to  be  a 
waiver. 

Motion  denied. 
402 


CASES  IN  CHANCERY.  521 

1818. 

COOPER 

CO:PER  and  Wife  against  CLASON  and  others. 

o  CLASON. 

Where  a  testator,  by  is  will,  devised  as  follows :  "  I  do  give,  &c.  to 
my  daughter  E.  C  during  her  separation  from  W.  C.,  her  present 
husband,  one  thousand  dollars  a  year,  which  sum  is  hereby  charged 
upon  my  real  estate :  "  Held,  that  a  voluntary  separation  of  E.  C. 
from  her  husband  would  not  entitle  her  to  the  annuity,  for  she  can 
establish  no  claim  on  her  own  violation  of  conjugal  duty. 

Whether  the  separation,  which  is  to  give  effect  to  the  bequest,  must  not 
have  existed  at  the  time  of  the  testator's  death  ?  Qiwere. 

THIS  cause  came  on  for  argument  upon  the  amended  bill,      Octoier  7 
which  contained  this  averment :    "  That,  immediately  after 
the  death  of  the  said  testator,  your  orators  separated  from 
each  other,  and  lived  separate  and  apart  from  each  *other,        [  *  522  1 
for  more  than  one  year,  on  account  of  some  unfortunate 
occurrences  which  your  orators  are  advised,  by  their  counsel, 
it  is  not  necessary  particularly  to  state ;  but  they  expressly 
declare,  that  such  separation  did  not  take  place  with  any 
view  or  design,  whatever,  of  obtaining,  or  securing,  thereby, 
the  payment  of  the  said  annuity." 

Some  of  the  defendants,  in  their  answer,  denied  the  fact 
of  such  separation,  and  others  admitted  it,  but  were  ignorant 
of  the  cause. 

The  words  of  the  bill,  on  which  the  plaintiffs  relied,  were 
as  follows :  "  I  do  give  and  bequeath  to  my  daughter  Eliza 
Cooper,  during  her  separation  from  William  Cooper,  her 
present  husband,  1,000  dollars  a  year,  which  sum  is  hereby 
charged  upon  my  real  estate." 

The  will  was  dated  the  26th  of  April,  1810,  and  the 
plaintiffs  then  lived  separate  ;  they  afterwards  came  together, 
and  lived  and  cohabited  together,  until  after  the  death  of 
the  testator. 

H.  Sedgwick,  for  plaintiffs. 

Robinson,  Bristed,  and'Jm/,  for  defendants. 

THE  CHANCELLOR  said,  the  case  was  not  essentially 
different  from  what  it  was  when  presented  in  June  last,  (a) 
Whether  the  separation  must  not  have  existed  at  the  testa- 
tor's death,  to  give  effect  to  the  annuity,  need  not  be  consid- 
ered, though,  probably,  that  ground  would  be  decisive.  But 
the  wife  must  show,  at  least,  an  involuntary  separation  on  her 

(a)  Vide  S.  C.  ante  p.  382. 

403 


522  CASES  IN  CHANCERY. 

part,  to  entitle  her  to  the  annuity.  It  cannot  be  applied  (<s 
a  voluntary  separation ;  the  Court  cannot  permit  a  wife  to 
establish  a  claim  founded  on  her  own  violation  of  conju- 
gal duty. 

Bill  dismissed  with  costs. 


[  *  523  1  *B  RADISH  against  GIBBS  and  others. 

A  feme  covert  may  execute,  by  a  will  hi  favor  of  her  husband,  a  powei 
given  or  reserved  to  her  while  sole,  over  her  real  estate. 

Where  the  wife,  before  marriage,  entered  into  an  agreement  with  her  in- 
tended husband,  that  she  should  have  power,  during  the  coverture, 
to  dispose  of  her  real  estate,  by  will,  and  she,  afterwards,  devised  th<; 
whole  of  her  estate  to  her  husband,  this  was  held  a  valid  disposition 
of  her  estate  in  equity;  and  the  heirs  at  law  of  the  wife  were  decreed 
to  convey  the  legal  estate  to  the  devisee. 

iV<».-MnAer  9.  IN  April,  1814,  the  plaintiff,  and  Helen  Elizabeth  Gibbs, 
entered  into  a  marriage  contract ;  she  being  seised,  in  her 
own  right,  of  a  valuable  real  and  personal  estate,  which  the 
plaintiff  agreed  should  be  at  her  disposal,  notwithstanding 
the  contemplated  marriage.  Articles  of  agreement  were 
thereupon  made  and  executed  between,  them,  under  seal, 
dated  the  20th  of  April,  1814,  reciting  the  treaty  of  marriage 
to  be  solemnized,  and  that  she  was  possessed,  in  her  own 
right,  of  certain  personal  estate,  described  in  a  schedule 
thereunto  annexed,  and  might  become  entitled  to  other  per- 
sonal property,  not  mentioned ;  and  that,  whereas,  by  the 
marriage,  the  personal  property  would  vest  in  the  plaintiff',  and 
in  case  of  his  decease,  intestate,  would  go  to  his  heirs ;  and 
that,  by  the  marriage  treaty,  it  was  agreed,  that,  in  case  of 
the  death  of  the  plaintiff,  leaving  her  his  survivor,  without 
issue,  the  said  personal  property  should  vest  in  her  absolutely 
in  like  manner  as  if  no  marriage  had  taken  place ;  in  order, 
therefore,  to  carry  the  said  treaty  of  marriage  into  effect,  the 
plaintiff,  in  consideration  of  the  marriage,  covenanted  with 
the  said  H.  E.  Gibbs,  that  if  the  marriage  should  take  place, 
and  the  plaintiff  should  die,  leaving  his  wife  living,  without 
issue  by  her,  at  his  death,  then  all  the  personal  property  de- 
scribed in  the  schedule,  and  personal  property  not  mentioned 
\  *  524  1  therein,  of  which  the  plaintiff,  by  virtue  of  the  *marriage, 
might  become  possessed,  in  right  of  his  wife,  either  by  gift, 
404 


CASES  IiN  CHANCERY.  534 

iescent,  purchase,  &c.,  should,  on  his  decease,  vest  in  hei,  1818. 
absolutely,  in  fee,  &c.  The  plaintiff  further  covenanted, 
that  if  any  part,  or  the  whole,  of  the  real  estate  of  which  she 
was  then  seised,  and  which  was  mentioned  and  described  in 
the  said  schedule,  should  be  sold  during  the  coverture,  the 
proceeds  of  such  sale,  or  the  amount  thereof,  should  be  re- 
invested in  other  real  estate,  in  her  name,  and  for  her  use ; 
and  that  she  should,  at  all  times,  during  her  coverture,  have 
full  power  effectually  to  dispose  of,  according  to  her  pleasure, 
ly  will,  or  by  any  instrument  in  writing,  in  the  nature  of,  and 
purporting  to  be  so,  all  such  real  estate  as  she  might  at  the 
time  be  seised  of  in  her  own  right,  either  jointly  or  severally  ; 
and  to  that  end,  the  will,  or  any  instrument  in  writing  pur- 
porting to  be  such,  of  her,  though  made  and  executed  during 
the  coverture,  should  be  equally  valid,  as  if  she,  at  the  time  of 
making  thereof,  was  a  feme  sole ;  and  that  the  plaintiff,  his 
heirs,  executors,  &c.,  would  do  all  such  acts  as  might  be  need- 
ful and  proper,  in  law  or  equity,  on  his  or  their  part,  for  carry- 
ing the  same  into  effect. 

The  real  estate  mentioned  in  the  schedule  was  described 
as  a  lot  and  house  in  the  city  of  New-York,  purchased  of  J. 
Shaw,  and  which  cost  23,250  dollars.  The  parties,  after  the 
execution  of  the  contract,  were  married,  on  the  21st  of  April, 
1814,  and  lived  together  until  her  death,  in  April,  1816. 

A  contract  had  been  entered  into,  in  February,  1814,  by 
and  on  behalf  of  H.  E.  G.,  with  J.  ^for  the  purchase  from 
him  of  the  house  and  lot  above  mentioned ;  the  sum  of  750 
dollars  was  paid  as  part  of  the  purchase,  and  the  residue  was 
agreed  to  be  paid  on  the  delivery  of  the  deed,  on  or  before 
the  21st  of  May,  1814;  and  the  balance,  being  22,500  dol- 
lars, was  paid  by  the  plaintiff,  after  the  marriage,  out  of  the 
personal  estate  of  his  wife,  on  the  29th  *of  April,  1814 ;  and  [  *  525  j 
the  deed  which  had  been  previously  executed  by  J.  S.  to  H. 
E.  G.,  and  delivered  as  an  escrow  to  C.  IV.,  was  delivered 
by  him.  The  plaintiff  and  his  wife  took  possession,  after- 
wards, and  occupied  the  premises  until  her  death ;  and  the 
plaintiff  has  since  continued  in  possession,  having,  during  the 
life  of  his  wife,  expended  large  sums  in  improvements. 

In  August,  1815,  the  wife  of  the  plaintiff,  in  pursuance  of 
ihe  power  reserved  to  her  by  the  articles  of  agreement,  made 
her  will  in  such  a  manner  as  would  have  passed  all  her  real 
estate,  had  she  been  a.  feme  sole.  The  will,  in  substance,  was, 
that  she  revoked  all  former  wills,  and  gave  and  devised  to  the 
plaintiff  and  his  heirs,  forever,  all  her  estate,  of  what  nature 
or  kind  soever,  without  reserve,  whether  real,  personal  or 
piixed,  or  in  possession,  reversion,  or  remainder,  and  appointed 
the  plaintiff  her  sole  executor.  The  testatrix  died  without 

405 


525  CASES  IN  CHANCERY. 

1818.       issue,  on  the  7th  of  April,  1816,  leaving  the  said  will  unro 

v^*— v-«*^  voked,  being  then  seised  of  the  house  and  lot  in  question, 

DRADISH      leaving  two  brothers  and  three  sisters,  her  heirs  at  law.     One 

GIBUS         of  the  sisters,  afterwards,  died,  on  the  13th  of  January,  1817. 

The  bill  of  the  plaintiff  prayed,  that  the  defendants,  who  are 

the  two  brothers  and  sisters  of  his  deceased  wife,  should  be 

•     decreed  to  execute  a  conveyance  to  him  of  the  legal  estate 

in  the  said  house  and  lot. 

The  answer  of  the  defendants  admitted  the  facts  stated  in 
the  bill,  but  denied  that  the  wife  of  the  plaintiff  had  adequate 
•power  to  dispose  of  her  real  estate  in  equity,  by  will,  so  as  to 
vest  the  title  in  equity  in  her  husband ;  and  they  averred, 
that  the  will  did  not  operate  in  the  nature  of  an  appointment 
to  vest  the  equitable  title  in  the  plaintiff;  and  that  the  will 
being  made  during  coverture,  and  in  favor  of  the  husband, 
was  void,  as  to  the  house  and  lot,  both  at  law  and  in  equity. 
On  the  argument  of  the  cause,  three  points  were  raised  for 
the  consideration  of  the  Court :  1 .  That  the  power  reserved 
|  "  526  j  *to  Mrs.  J3.  by  the  ante-nuptial  contract,  was  executed  in 
equity,  by  the  instrument  purporting  to  be  her  last  will ;  and 
that  the  plaintiff  was,  therefore,  entitled  to  a  conveyance  from 
her  heirs  at  law,  of  the  legal  estate,  according  to  the  prayer 
of  the  bill. 

2.  As  the  real  estate  in  question  was  paid  for  out  of  the 
personal  estate  of  Mrs.  B.,  it  may  be  considered  in  equity  as 
personal  estate ;  and,  if  so,  her  will  would  be  a  valid  dispo- 
sition of  it. 

3.  That,  at  all  events,  the  plaintiff  was  entitled  to  be  re- 
imbursed the  amount  he  had  expended  on  the  real  estate  in 
repairs  and  improvements. 

The  cause  having  been  decided  on  the  first  point,  it  is  un- 
necessary to  state  the  arguments  of  counsel  on  the  others. 

Wells,  for  the  plaintiff,  contended,  that  if  the  real  estate  in 
question  had  been  conveyed  by  Miss  G.  to  trustees,  before 
her  marriage,  and  the  plaintiff,  being  a  party  to  the  deed,  had 
entered  into  covenants  similar  to  those  contained  in  the  articles 
of  agreement,  no  doubt  could  be  entertained  of  the  power 
of  Mrs.  B.  to  dispose  of  her  real  and  personal  estate,  in  the 
same  manner  as  if  she  had  been  a  feme  sole ;  and  that  the 
will  executed  by  her  would  be  a  valid  disposition  of  both. 
(Wright  v.  Englcfield,  Amb.  468.  S.  C.  on  Appeal,  1  Bro. 
P.  C.  503,  504.  Tomlin's  Ed.  6  Bro.  P.  C.  156.  Wright 
v.  Cadogan.  Peacock  v.  Monk,%  Vesey,  190.)  Lord  Hard- 
wicke,  it  is  true,  in  the  case  of  Peacock  v.  Monk,  whilst  he 
admitted  the  right  of  a  feme  covert  to  dispose  of  her  beneficial 
interest  in  her  real  estate  vested  in  trustees,  under  a  power 
406 


CASES  IN  CHANCERY.  526 

reserved  to  her  for  that  purpose,  expressed  strong  doubts        1818. 
whether  she  could  do  so,  under  an  agreement  merely  between  •^^^^^^^ 
her  husband  and  herself,  before  marriage,  where  the  legal  es-      BRADISH 
tate  continued  in  her.     In  a  subsequent  case,  however,  Lord        GIBBS 
Camden  decided,  that  it  made  no  *diflference,  whether  the       r  #  597  i 
estate  had  been  conveyed  to  trustees,  or  remained  a  legal 
estate  in  the  wife  after  marriage ;  but  that,  in  both  cases,  the 
power  would  be  equally  well  executed  in  equity.     (Rippon 
v.  Dowding,  Amb.  565.)     Lord  Kenyon,  also,  in  speaking  of 
Lord  HardwicJce's  doubts,  says,  "  That  which  was  then  con- 
sidered as  a  doubt  no  longer  remiins."     (Doe  v.  Staple,  2 
Term  Rep.  695.)     The  rule  laid  down  in  Rippon  v.  Dowding 
has,  also,  met  the  unanimous  approbation  of  the  Supreme  Court 
of  Pennsylvania.     (Barnes's  Lessee  v.  Irwin,  2  Dallas,  199.) 
The  rule  is  founded  in  good  sense,  and  is  supported  by 
authority.     If  the  legal  estate  of  Mrs.  B.  had  been  vested 
in  trustees,  her  will  would  have  been  good,  as  an  appoint- 
ment, and  equity  would  have  compelled  the  trustees  to  con- 
vey the  real  estate   accordingly.     Why,  then,  are  not  the 
heirs  at  law  of  Mrs.  B.  equally  trustees,  for  the  purpose  of 
giving  effect  to  the  execution  of  the  power  reserved  to  her 
by  the  ante-nuptial  contract,  and  equally  under  the  control 
of  a  Court  of  equity  ?     In  the  language  of  Lord  Camden, 
"the  principle  of  determination  is  the  same  in  both." 

Riggs,  contra.  The  will  takes  no  notice  of  the  power 
to  make  it,  arising  from  the  articles  of  agreement ;  and  the 
Court  cannot  intend  that  it  was  made  in  pursuance  of  the 
articles,  unless  it  so  appears  from  the  will  itself.  A  will 
which  depends  on  such  previous  power  for  its  validity,  must 
refer  to  the  power,  or  the  will  is  void.  (Andrews  v.  Emmet, 
2  Bro.  C.  C.  297.  2  Hen.  BL  139.  per  Heath,  J.)  As  the 
plaintiff  does  not  pretend  to  have  made  a  settlement  on  his 
wife,  so  as  thereby,  or  in  any  other  manner,  to  have  become 
a  purchaser  of  her  fortune,  he  is  to  be  viewed  as  a  mere 
volunteer.  According  to  the  last  resolution  in  the  case  of 
Vane  v.  Fletcher,  (I  P.  fVms.  352.)  a  mere  volunteer  is  not 
to  be  assisted  in  a  Court  of  equity  against  the  heir  at  law. 

*Again  ;  the  plaintiff  claims  the  benefit  of  his  own  cove-  [  *  528 
nant,  which,  from  the  nature  of  it,  and  the  nature  of  the 
case,  could  only  enure  to  the  benefit  of  some  third  person 
who  might  be  her  devisee.  That  the  devisee  of  the  wife, 
being  a  third  person,  might  claim  the  benefit  of  the  plaintiff's 
covenant,  so  far  as  he  had  any  estate  to  be  affected  by  it, 
seems  reasonable.  As  if  the  plaintiff  had  become  tenant  by 
the  courtesy  of  the  premises,  and  she  had  devised  them  to  a 
third  person,  such  devisee  might  call  on  the  plaintiff  in  a 

407 


528  CASES  IN  CHANCERY. 

1818.       Court  of  equity,  to  convey  B.S  far  as  his  interest  and  covenant 

^^^-^^-^^x  extended.     But  that  he  should  himself  call  on  the  heirs  at 

BRADISH      law  for  a  conveyance,  because  he  had  covenanted  that  his 

GIBBS         w^e  m'ght  make  a  wiil>  and  that  he  would  do  every  needful 

and  proper  act  to  give  it  validity,  appears  to  be  a  strange 

proposition,  if  not  a  legal  solecism. 

We  contend,  that  the  doctrine  of  the  Court  of  Equity  on 
this  subject  is,  that  the  only  method  by  which  the  ivill  of  a 
feme  covert  of  her  real  estate  can  be  made  effectual,  even  in 
equity,  in  favor  of  a  volunteer,  is  by  her  conveying  her  estate 
to  a  third  person,  previous  to  her  marriage,  in  trust,  for  such 
person  as  she  shall,  by  her  will,  made  during  coverture, 
appoint;  or,  by  raising  a  use,  and  reserving  to  herself  a 
power  over  it,  to  be  effectuated  by  such  will.  (Peacock  v. 
Monk,  2  Vesey,  190.) 

The  counsel  for  the  plaintiff,  however,  suppose,  that  the 
opinion  of  Lord  Uardwicke  in  Peacock  v.  MonJc,  has  been 
overruled  by  the  subsequent  cases  of  Wright  v.  Enghfield, 
and  Rippon  v.  Doweling.  In  the  first-mentioned  case,  and 
in  Wright  v.  Cadogan,  the  legal  estate  was  in  trustees,  to  whom 
it  had  been  conveyed  by  the  father  of  the  feme  covert  who 
made  the  will.  The  equitable  title  descended  on  her  while 
she  was  a  widow.  Before  her  second  marriage,  the  agree- 
ment was  made,  upon  the  validity  of  which  her  will,  made 
during  coverture,  depended.  By  that  will  she  devised  her 
equitable  estate  in  the  premises  to  her  husband  for  life,  re- 
*  529  ]  mainder  to  the  sons  of  the  marriage  in  tail  *male,  remainder 
to  the  daughters  of  the  marriage  in  tail  general.  The  bill 
was  brought  by  the  heir  at  law  to  have  a  conveyance  of  the 
legal  estate  from  the  trustees,  who  filed  a  cross-bill  for  di 
rections  to  whom  they  should  convey.  In  that  case,  the 
feme  could  not  convey  the  estate  to  trustees,  as  that  had 
already  been  done  by  her  father.  Any  attempt  to  make  such 
a  conveyance  would  have  amounted  merely  to  a  declaration 
of  trust ;  and  it  was  held,  that  the  articles  before  marriage, 
and  her  will,  afterwards,  were  equivalent  to  such  declaration. 
(Per  LordCh.  Northington,  Ambler,  473.)  Again;  the  pro- 
vision made  in  that  case,  by  the  will  of  the  feme  covert,  for 
children,  was  deemed  a  meritorious  consideration,  so  that  the 
devisees  were  not  mere  volunteers ;  and  that  seems  to  be  the 
ground  on  which  the  devise  was  supported.  In  the  present 
case,  there  is  no  such  consideration,  and  the  plaintiff  is  a 
mere  volunteer.  What  further  distinguishes  that  case  from 
the  present  is,  that  there  the  heir  at  law  sought  the  aid  of 
the  Court,  to  obtain  the  legal  title.  Here  the  plaintiff  seeks 
the  aid  of  the  Court  to  take  the  legal  title  from  the  heirs  at 
law,  in  whom  it  is  vested. 
408 


CASES  IN  CHANCERY.  529 

Lord  Northington  (Ambler,  473.)  refers  to  the  case  of        1818. 
Bramhatt  v.  Hall,  decided  by  himself  a  short  time  before ;  ^^^^-^^ 
and  it  appear,1?,  that  the  decision  in  that  case  was  against  the      BRADISH 
will,  for  want  of  a  meritorious  consideration.    (Ambler,  467.)        GIBBS 
In  the  report  of  the  case  on  appeal,  Wright  v.  Cadogan  and 
others,  the  counsel  in  favor  of  the  will  urge  the  fact  of  a 
previous  conveyance,  and  the   meritorious  consideration,  in 
support  of  the  devise,  showing  their  opinion  to  be,  that  it 
could  not  be  supported  without  such  considerations. 

As  to  the  observation  of  Lord  Kenyan,  in  Doe  v.  Staple, 
(2  Term  Rep.  695.)  on  what  was  said  by  Lord  Hardwicke, 
in  Peacock  v.  Monk,  it  is  apparent,  that  either  Lord  Kenyan's 
observations  have  been  misunderstood,  and  misreported,  or 
that  his  lordship  mistook  the  facts  of  the  case  to  *which  he  [  *  530  j 
referred.  The  heir  at  law,  in  that  case,  was  not  decreed  to 
convey ;  for  the  legal  estate  was,  at  the  time,  outstanding  in 
trustees,  and  the  bill  was  filed  by  the  heir  to  obtain  a  con- 
veyance from  the  trustees.  And  Justice  Buller,  sitting  in 
chancery,  in  noticing  the  case  referred  to,  points  out  the 
mistake  of  Lord  Kenyon.  (2  Bro.  C.  C.  386.) 

The  case,  therefore,  of  Wright  v.  Englejield,  or  Wright   . 
v.  Cadogan,  does  not  impair  the  doctrine  of  Lord  Hardwicke 
in  Peacock  v.  Monk,  as  applicable  to  the   case  now  before 
the  Court. 

In  the  case  of  Rippon  v.  Dowding,  so  much  relied  on  by 
the  plaintiff's  counsel,  the  husband,  before  marriage,  gave  his 
intended  wife  a  bond,  empowering  her,  during  coverture,  to 
dispose  of  her  real  estate,  by  deed,  or  by  will ;  and  during 
coverture,  she  made  a  will  devising  the  estate  to  her  younger 
children,  who,  afterwards,  filed  a  bill  against  the  heir  at  law 
for  a  conveyance,  and  obtained  a  decree.  Lord  Camden  ob- 
served, it  was  a  mistake  to  call  it  a  question  between  volun- 
teers;  that  the  wife  might  have  compelled  the  husband  to 
join  with  her  in  a  conveyance  by  fine,  during  coverture. 
There  was,  also,  in  that  case,  a  meritorious  consideration,  the 
provision  for  younger  children  ;  and  stress  is  laid  on  the  power 
to  dispose  by  deed,  as  taking  the  case  out  of  the  general  rule 
as  to  a  power  of  disposition  by  a  feme  covert,  by  will  only. 

In  the  case  of  Barnes  v.  Erwin  and  others,  (2  Dallas,  199.) 
there  was  an  ante-nuptial  agreement  between  the  husband 
;md  wife,  and  a  trustee  for  her ;  and  she  was  empowered  to 
dispose  of  her  real  estate  by  deed  or  will.  There  were  no 
children  by  the  marriage.  The  wife,  during  coverture,  made 
a  will,  authorizing  the  executors  to  sell  the  estate,  and  dc 
vised  the  proceeds  in  legacies,  one  of  which  was  to  the  heir 
at  law,  and  the  residue  was  given  to  her  nepheivs,  ivho  were 
her  nearest  relations,  which  furnished  the  meritorious  consid- 

VOL    III.  52  409 


531*  CASES  IN  CHANCERY. 

1818.       eration  to  sustain  the  equity.     The  chief  ju&tice  *makes  it 

\^r-^~^,   one  of  the  grounds  of  his  judgment,  "  that  the  devise  was 

BRADISH      not  to  the  husband,  nor  to  his  relations,  but  among  the  ivtfe's 

GIBBS        nearest  of  kin ;  "  clearly  implying  that  a  devise  to  the  husband 

could  not  have  been  supported. 

The  case  of  Doe  v.  Staple,  (2  Term  Rep.  684.)  which  has 
also  been  cited,  came,  afterwards,  into  the  Court  of  Chancery 
for  decision,  under  the  name  of  Hodsden  v.  Lloyd,  (2  Bro. 
C.  C.  534.)  and  in  delivering  his  judgment,  Lord  Thurlow 
stated  the  rule  to  be,  "  that  with  regard  to  chattels,  both 
real  and  personal,  the  husband,  by  contract  anterior  to 
marriage,  resting  only  in  agreement,  may  authorize  his  wife 
to  make  a  will ;  but  in  order  to  make  a  will  of  real  estate, 
she  must  part  with  the  legal  estate  to  trustees,  for,  by  agree- 
ment, while  resting  in  agreement  only,  he  cannot  bind  the 
heirs,  but  can  only  bind  himself,  and  the  legal  estate  ought 
to  be  conveyed  by  legal  conveyances."  In  Fettiplace  v. 
Gorges,  (3  Bro.  C.  C.8.  10.)  Lord  Chancellor  Thurloiv  says, 
"  The  case  of  Peacock  v.  Monk  supposes  that  there  may  be 
such  an  agreement  as  will  bind  the  heir ;" — "  although  when 
the  wife  makes  a  voluntary  disposition  against  the  heir,  it 
cannot  be  carried  into  execution.  But  with  respect  to  her 
personal  property,  her  disposition  is  good."  It  is  said,  in 
Milnes  v.  Busk,  (2  Vesey,jun.  488.)  that  a  disposition,  by  a 
feme  covert,  in  favor  of  a  husband,  will  not  be  countenanced 
by  a  Court  of  equity,  on  account  of  the  undue  influence  to 
which  she  is  exposed. 

It  would  seem  to  be  the  opinion  of  Mr.  Maddock,  in  his 
late  work,  (1  Madd.  Ch.  374,  5.)  that  the  true  doctrine  on 
this  subject  is  contained  in  the  cases  of  Peacock  v.  Monk, 
Hodsden  v.  Lloyd,  and  Fettiplace  v.  Gorges,  as  applicable 
to  cases  like  the  present ;  and  that  the  cases  of  Wright  v. 
Englefcld,  or  Wright  v.  Cadogan,  and  Rippon  v.  Douding, 
are  only  exceptions  to  the  rule  founded  on  the  peculiar  cir- 
cumstances of  the  case,  and  supported  by  a  meritorious  con- 
sideration. 

*  532  ]  *The  plaintiff's  title  is  defective  on  another  ground,  though 

it  is  rather  a  formal  one.  As  the  plaintiff  claims  under  a  will, 
said  to  be  made  by  his  wife,  pursuant  to  a  power,  until  this 
will  is  exhibited  and  proved  as  such,  nothing  can  be  claimed 
under  it.  (I  Madd.  Ch.  331.  2  Atk.  48.  3-4^.156160. 
162.) 

Wells,  in  reply,  insisted,  that  the  plaintiff,  in  this  case,  was 
not  a  volunteer ;  and  that  marriage  was  as  much  a  valuable 
consideration  as  money.  The  appointee  does  not  take  u*»der 
the  power,  but  under  the  deed,  or  instrument  creating  the 
410 


CASES  IN  CHANCERY.  532 

power.     In  the  language  of  the  books,  he  is  in  under  the 

original  deed.     (4  Cruise's  Dig.  233 — 235.)     The  deed  was 

the  ante-nuptial  contract.    It  is,  in  effect,  the  same  as  if  there      BKADISH 

had    been    a  technical  and  formal  marriage  settlement,  by        GIBBS 

which  it  is  admitted,  that  Miss   G.  might  have  limited  her 

whole  estate  to  her  husband,  in  case  of  her  death  without 

children.     The  marriage  would  be  the  valuable  consideration, 

on  the  part  of  the  husband,  though  he  made  no  settlement 

on  his  wife.     In  both  cases,  he  must  claim  under  a  contract 

made  in  contemplation  of  marriage,  the  consummation  of 

which  forms  a  valuable  consideration,  and  excludes  the  notion 

of  his  being  a  volunteer.     In  Rippon  \.  Dowding,  the  parties 

claiming  the  benefit  of  the  appointment  under  the  marriage 

settlement,  were  called  by  the  counsel  volunteers ;  but  Lord 

Camdcn  said  it  was  "  a  mistake  to  call  them  volunteers." 

Even  Lord  Hardwicke,  in  Peacock  v.  Monk,  when  express 
ing  his  doubts  whether  a  mere  agreement  between  the  husband 
and  wife,  before  marriage,  by  which  the  wife  was  to  dispose 
of  her  real  estate,  would  bind  the  heir,  suggests,  that  there 
was  one  way  in  which  such  an  agreement  might  bind  the 
heir.  If,  says  he,  the  agreement  would  enable  the  wife  to 
come  into  a  Court  of  equity,  after  marriage,  to  compel  the 
husband  to  carry  it  into  effect,  by  a  proper  conveyance,  "  the 
question  might  be,  *whether  the  heir  at  law  is  not  to  be  bound  [  *  533  * 
by  the  consequence  of  that  agreement."  This  suggestion  of 
Lord  PI.  is  adopted  by  Lord  Camden,  in  Rippon  v.  Dowding, 
and  who  rests  his  opinion  on  that  very  ground.  "  The  agree- 
ment," says  he,  "  was  made  on  marriage,  and  the  wife  might 
have  compelled  her  husband  to  join  with  her  in  a  fine." 
And  Chief  Justice  M'Kcan,  in  Barnes's  Lessee  v.  Irwin,  says 
the  same  thing ;  and  he  adds  that  it  was  an  agreement  fair 
and  lawful,  and  founded  on  a  valuable  and  meritorious  con 
sideration. 

This  is,  then,  such  an  agreement  as  a  Court  of  equity  will 
enforce.  The  plaintiff,  however,  is  entitled  to  the  convey- 
ance, not  only  on  the  ground  of  a  valuable  consideration,  but, 
also,  of  a  meritorious  consideration.  The  counsel  for  the 
defendant  seems  to  suppose,  that  the  consideration  of  an  ap- 
pointment can  be  meritorious  only  where  children,  or  rela- 
tions, at  least,  are  its  objects.  Yet,  in  judgment  of  law,  the 
husband  is  nearest  of  kin  to  his  wife.  Cases  may  arise  which 
may  excite  suspicion  of  improper  influence;  as  where  a  wife, 
in  the  execution  of  a  power,  should  devise  the  whole  of  her 
estate  to  hdr  husband,  to  the  exclusion  of  her  children  ;  and 
it  is  to  such  cases  that  the  observations  of  Lord  Louphborouph* 

B  .  . 

in  Milnes  v.  Busk,  are  to  be  applied ;  and  which  were  in- 
tended  to  impose  some   qualification  on   the  doctrine  laid 

411 


533  CASES  IN  CHANCERY. 

1818.  down  by  the  counsel  in  argument,  that  afene  covert,  with  & 
v_^~N/^^x  power  reserved  over  her  separate  property,  was  to  be  ccn- 
BKADISH  sidered,  in  every  respect,  as  a  feme  sole.  Meritorious  con- 
G,B'BS-  siderations  are  not  known  in  law,  as  forming  a  distinct  class 
from  those  which  are  valuable,  or  which  arise  from  natural 
love  or  affection.  They  can  mean  nothing  more  than  that  they 
are  such  as  are,  in  themselves,  just  and  agreeable  to  moral 
sense,  and  as  having  a  natural  fitness  and  propriety.  Can  any 
thing  be  more  fit  or  proper  than  that  a  wife  should  provide  for 
a  husband  whom  she  loves,  and  whom  her  death  might, other- 
J  *  534  ]  wise,  leave  destitute,  when  *there  are  no  children  to  interfere 
with  the  exercise  of  her  undivided  affection  ?  In  Bramhall  v. 
Hall,  in  which  Lord  Northington  says,  (Wright  v.  Englefield, 
Amb.  473.)  "  he  would  not  grant  the  relief,  because  there 
was  no  meritorious  consideration,"  the  wife  had  made  pro- 
vision for  an  illegitimate  child,  at  the  expense  of  the  lawful 
heir.  In  Wright  \.  Cadogan,  the  husband  took,  under  the 
wife's  appointment,  a  life  estate,  and  no  objection  was  made 
to  it,  on  the  ground  that  the  consideration  was  not  meritori- 
ous. The  law  on  this  subject  is,  in  truth,  broad  and  unqual- 
ified :  Whoever  is  capable  of  taking  an  estate  by  a  common 
law  conveyance,  may  be  an  appointee.  (4  Cruise's  Dig. 
241.  s.  33.)  If  the  husband  is  an  exception  to  this  rule,  it 
ought  clearly  to  be  shown  by  some  adjudged  case  ;  arguments 
of  counsel,  or  inferences  from  the  dicta  of  judges,  afford  too 
slender  grounds  for  the  exclusion  of  a  whole  class  of  persons 
from  rights  to  which  they  would  otherwise  be  entitled.  There 
is  nothing  in  the  work  of  Mr.  Maddock  referred  to  (1  Madd. 
Eq.  374,  375.)  which  can  justify  the  conclusion  drawn  by 
the  opposite  counsel ;  when,  in  his  note,  he  refers  to  Hodsden 
v.  Lloyd,  and  Fettiplace  v.  Gorges,  he  adds,  but  see  Rippon 
v.  Dowding,  &c.  And  Mr.  Powell,  in  his  notes  to  Wood's 
Conveyancing,  (vol.  2.  p.  6.  Dub.  ed.)  considers  the  case  of 
Rippon  v.  Dowding  as  having  settled  the  law  on  the  subject. 
Again  ;  the  ante-nuptial  contract,  in  this  case,  was  executed 
in  duplicate,  by  each  of  the  parties,  under  seal.  It  is,  there- 
fore, technically,  a  deed.  Why  is  it  not.  therefore,  equivalent 
to  a  covenant  on  the  part  of  Miss  G.,  with  the  consent  of  her 
intended  husband,  to  stand  seised  of  her  real  estate,  to  such 
uses,  as  she  should,  by  her  last  will,  appoint?  It  is  admitted, 
that  the  will  or  appointment  of  a  feme  covert  of  her  real  estate 
would  be  effectual,  even  in  favor  of  a  volunteer,  if,  previous 
to  her  marriage,  a  use  had  been  raised,  over  which  she  had 
reserved  a  power.  Now,  to  raise  such  a  use,  it  is  not  requi- 
*  535  ]  site  that  the  estate  should  *be  conveyed  to  a  third  person. 
It  is  equally  raised  by  a  covenant  to  stand  seised  of  the  prop- 
erty t<>  such  uses  as  she  might,  during  coverture,  appoint. 
412 


CASES  IN  CHANCERY.  53S 

In  Doe  v.  Staples,  the  agreement  before  marriage  was  not        1818. 
under  seal,  for  which  reason  Lord  Kenyan  says,  it  could  not      **• -^~ *^ 
be  considered  as  a  covenant  to  stand  seised  to  uses  ;  leaving      '^RADISH 
it  to  be  inferred,  that  if  it  had  been  a  deed,  it  might  be  such        ,.  ^ 
a  covenant.     So  Chief  Justice  M'Kean,  in  the  case  cited  from 
Dallas,  says,  Why  may  not  the  wife's  articles  of  agreement, 
or  deed  of  1774,  be  considered  as  a  covenant  to  stand  seised 
of  her  real  estate,  for  she  was  therein  specially  mentioned, 
and  also  for  the  use  of  her  will  or  appointment  ?     Marriage, 
which  tends  to  join  blood,  is  one  of  the  considerations  held 
sufficient  to  validate  such  a  conveyance. 

It  has  been  suggested,  that  as  the  will  does  not  refer  to  the 
power,  it  is  not  valid.  If  this  objection  deserves  a  serious 
answer,  it  is  sufficient  to  refer  to  the  case  of  Andrews  v. 
Emmot,  (2  Bro.  C.  C.  303.)  and  the  opinion  of  Heath,  J., 
in  Bucldand  v.  Barton,  (2  H.  Bl.  139.  6  Co.  17.  b.  8 
Term  Rep.  118.) 

As  to  the  formal  objection,  it  is  enough  to  say,  that  the 
will  is  stated  in  the  pleadings,  and  made  an  exhibit  in  the 
cause,  with  the  consent  of  the  solicitors  of  the  parties,  that  it 
should  be  read  at  the  hearing,  in  the  same  manner  as  if  it 
had  been  duly  proved. 

The  objection  that  the  plaintiff  is  claiming  the  benefit  of 
his  own  covenant  against  the  heirs,  who  are  third  persons, 
cannot  deserve  a  moment's  consideration;  if  the  reason,  nature, 
and  object  of  the  thing  is  understood.  The  same  objection 
might  equally  be  made,  if  trustees  had  been  interposed. 

THE  CHANCELLOR.  The  question  in  this  case  is,  whether 
the  plaintiff,  by  reason  of  the  ante-nuptial  agreement,  and 
the  subsequent  will,  is  entitled  to  the  aid  of  this  Court,  to 
^compel  the  defendants,  who  are  the  heirs  at  law  of  the  wife,  [  *  53  G  ] 
and  upon  whom  the  legal  title  to  the  premises  descended,  to 
convey  the  same  to  him. 

I  shall  confine  myself  to  the  consideration  of  this  impor- 
tant point;  and  as  my  conclusion  will  be  in  favor  of  the 
plaintiff,  the  discussion  of  the  subordinate  points  will  become 
unnecessary. 

This  is  a  dry  question,  resting  entirely  on  the  technical 
rules  of  equitable  jurisprudence ;  and  I  shall  be  obliged  to 
examine  minutely  the  authorities  which  are  applicable  to  the 
subject,  and  shall  endeavor  to  extract  from  them  the  true 
principle  which  ought  to  govern  the  case. 

It  is  settled  that  a.  feme  covert  may  execute  by  will,  in  favor     A  feme  coven 
of  her  husband,  a  power  given  to  her  while  sole  over  her  j^^hTfevo? 

real  estate.  of  her  husband 

a  power  giver 
to  her,  while  sole,  over  her  real  estate 

413 


536  CASES  IN  CHANCERY. 


1818.  In  Rich  v-  Beaumont,  (3  Bro.  P.  C.  308.)    a   treaty  of 

^r-\^^^x  marriage  was  concluded  between  the  appellant  and  his  in- 
BRADISH  tended  wife.  She  then  conveyed  an  estate  of  which  she 
GIBBS  was  seise<i,  in  trust,  and  with  the  declared  intent  to  suffer 
a  recovery,  and  that  the  recovery  was  to  enure  to  the  uses 
and  upon  the  trusts  declared  ;  which  were,  among  others,  that 
the  wife  should  receive  the  rents  and  profits  for  her  sole  and 
separate  use,  for  life,  exclusive  of  her  husband  ;  and  if  she 
should  leave  issue,  then  upon  trust,  that  the  trustees  should 
convey  to  such  issue,  according  to  her  direction  by  deed  or 
will,  and  in  default  ,of  issue,  and  in  case  she  survived  her 
mother,  then  to  such  uses  and  persons  as  she  by  deed  or  will 
should  appoint.  The  recovery  was  suffered,  and  the  mar- 
riage shortly  after  took  place  :  the  wife,  during  coverture,  had 
a  son,  and  survived  her  mother,  and  made  her  will,  in  which, 
among  other  dispositions,  she  gave  to  her  only  son  the  estate, 
with  a  reservation  in  favor  of  her  husband  of  one  half  of  the 
profits  for  life  ;  she  added,  that  if  her  son  should  die  during 
his  minority,  without  lawful  issue,  that  she  then  devised  all 
her  estate  to  her  husband,  the  appellant,  in  fee,  and  she 
*  537  ]  *directed  her  trustees  to  convey  her  trust  estate  to  such  uses 
and  purposes  as  were  named  in  her  will.  She  also  gave  all 
her  personal  estate  to  her  husband,  and  made  him  the  sole 
executor,  arid  died. 

Her  son  died  in  infancy,  without  issue,  and  the  appellant, 
apprehending  that  he  was,  by  the  will,  entitled  in  equity  to 
the  fee  of  the  estate,  and  to  have  a  conveyance  of  the  legal 
estate  from  the  trustees,  filed  his  bill,  in  1724,  against  the 
heirs  of  his  wife,  and  against  the  trustees,  praying  for  a  con- 
veyance of  the  legal  estate. 

Lord  Chancellor  King  dismissed  the  bill  on  the  ground 
that  the  appellant's  remedy,  if  any,  was  at  law. 

On  appeal  from  this  decree,  it  was  a  point  assumed^  that 
if  the  will  was  a  good  execution  of  the  power,  it  Was  well 
executed  in  favor  of  the  husband.  The  objection  was,  that 
the  power  was  not  well  executed  by  will,  because  a  feme 
covert's  will  of  land  was,  by  law  void.  The  decree  was  re- 
versed, and  an  order  made  that  the  Court  of  Chancery  take 
the  opinion  of  the  K.  B.,  whether  the  will  was  a  good  ap- 
pointment of  the  estate.  It  appears  that  the  Court  of 
Chancery  ordered  a  case  to  be  settled  for  the  opinion  of  the 
K.  B.,  and  we  have  no  further  report  of  the  case.  But  in 
Hearh  v.  Greenbank,  (1  Vesey,  305.)  and  in  Peacock  v.  Monk, 
(2  Vesey,  190.)  Lord  Hardwicke  cited  the  case,  to  prove  that 
a  feme  covert  might  execute  a  power  ;  and  it  was  stated  by 
the  counsel,  arguendo,  in  Marlborough  v.  Godolphin,  (%  Vesey 
414 


CASES  IN  CHANCERY.  531 

64.)  that  in  the  K.  B.,  where  the  case  was  sent,  it  was  held        1818. 
a.  good  appointment.  v..**— -^~**~> 

Though  this  case  was,  by  a  very  unusual  step,  referred  to      BRADISH 
a  Court  of  law,  yet  we  must  understand  the  decision  to  have        GIBBS 
been,  that  the  will  was  a  good  execution  of  the  power  in 
equity.     The  case  was  depending  before  an  equity  tribunal, 
to  be  decided  upon  equity  principles ;  and  Lord  Hardwicke, 
in  referring  to  that  case,  says,  that  the  point  had  been  so 
determined  "  in  this  Court."     At  law,  *such  a  will  is  void  ;       [  *  538  ] 
and  in  the  very  case  of  Peacock  v.  Monk,  we  find  a  decision 
of  Ch.  J.  Willes  cited,  in  which  it  was  held,  after  a  consul- 
tation with  the  other  judges,  that  the  husband  could  not  give 
power  to  his  wife  to  make  a  will  of  land.     This  determi- 
nation meant,  and  it  could  only  mean,  that  the  devise  of  a 
feme  covert,  though   made  in   pursuance  of  a  power,  was, 
equally  with  a  will  made  without  such  power,  void  in  a  Court 
of  law. 

This  early  case  may,  therefore,  I  apprehend,  be  relied  on 
as  a  decisive  authority  in  favor  of  the  equitable  title  of  the 
husband  under  his  wife's  will,  executed  in  pursuance  of  a 
power  created  previous  to  her  marriage,  and  that  such  a  title 
may  be  enforced  in  equity  against  the  heirs  at  law  of  the  wife. 
The  idea,  that  the  husband  is,  in  such  a  case,  to  be  deemed 
a  volunteer,  seems  to  be  without  foundation ;  and  though  it 
was  mentioned  by  the  counsel  for  the  respondents,  the  de- 
cision of  the  Court  of  Appeals  shows  that  the  objection  did 
not  apply. 

But,  in  that  case,  the  estate  of  the  wife  had  been  conveyed 
previous  to  her  marriage  to  trustees,  in  trust  for  such  persons 
as  she  should,  by  deed  or  will,  appoint.  The  case  is  not, 
therefore,  in  all  respects  applicable  to  the  one  before  me; 
and  the  doctrine  in  Peacock  v.  Monk  is  supposed  to  be  fatal 
to  the  present  claim. 

The  principal  question  in  Peacock  v.  Monk  (2  Vesey, 
190.)  was,  as  to  the  validity  of  the  wife's  will  of  land,  pur- 
chased by  her  during  the  coverture ;  and  the  observations 
of  Lord  Hardwicke,  on  which  great  reliance  is  placed,  were 
mere  dicta,  not  necessarily  arising  out  of  that  case,  and  so 
they  were  considered,  afterwards,  in  the  case  which  I  shall 
presently  mention,  before  Lord  Northington.  Lord  Hard- 
u-icke  admitted,  that  "  a  woman,  on  her  marriage,  may  take 
such  a  method  as  to  prevent  her  real  estate  from  going  to  her 
heir ;  but  he  doubted  whether  it  could  be  done  but  either  by 
way  of  trust,  or  of  power  over  a  use.  Suppose,  he  says,  a 
woman  having  a  real  estate  before  *marriage,  and  either  be-  [ 
fore  or  after  marriage,  by  a  proper  conveyance,  (if  after 

415 


539  CASES  IN  CHANCERY. 

1818.  marriage  it  must  be  by  fine,)  conveys  to  trustees,  in  trust  foi 
\^-^>~*^s  herself  during  coverture,  to  her  separate  use,  and  then  in 
BRADISH  trust  for  such  person  as  she  by  deed  or  will  should  appoint, 
GIBBS.  and  in  default  of  appointment,  to  her  heirs  ;  she  marries,  arid 
makes  such  an  appointment.  It  is  a  good  declaration  of  the 
trust,  and  this  Court  will  support  that  trust.  So  it  may  be 
done  by  her,  by  way  of  power  over  a  use,  as  if  she  conveyed 
the  estate  to  the  use  of  herself  for  life,  remainder  to  the  use 
of  such  person  as  she  by  writing,  &c.,  should  appoint,  and 
in  default  of  such  appointment,  to  her  own  use.  This  is  a 
power  reserved  to  her,  and  a /me  covert  can  execute  a  power. 
But  can  a  feme  covert  do  this,  so  as  to  bar  her  heir,  by  a  bare 
agreement,  without  doing  any  thing  to  alter  the  nature  of 
the  estate?  Can  a  woman,  having  a  real  estate  before  mar- 
riage, in  consideration  of  that  marriage,  enter  into  an  agree- 
ment with  her  husband,  that  she  may,  by  writing  or  by  will, 
dispose  of  her  real  estate  ?  This  rests  in  agreement,  and  if 
she  does  it,  though  it  may  bind  her  husband  from  being  tenant 
by  the  courtesy,  that  arises  from  his  own  agreement ;  but  what 
is  that  to  her  heir?  She  is  afejne  covert,  under  the  disability 
of  coverture,  at  the  time  of  the  act  done  ;  and  if  she  attempts 
to  make  a  will,  the  instrument  is  invalid.  The  only  question 
that  could  arise  would  be,  whether  such  an  agreement  be- 
tween her  and  her  husband  would  not  give  her  a  right  to 
come  into  equity  after  marriage,  to  compel  her  husband  to 
carry  it  into  execution,  and  to  join  with  her  in  a  fine  to  settle 
the  estate  on  such  trust,  or  to  such  and  such  uses.  And  if 
it  is  such  an  agreement  as  the  Court  would  decree  to  be 
carried  further  into  execution  by  a  proper  conveyance,  then 
the  question  may  be,  whether  the  heir  is  not  to  be  bound  by 
the  consequences  of  that  agreement." 

It  is  then  admitted,  in  this  case,  that  a  wife's  will  of  land 
[  *  540  ]       may  be  good  in  equity,  by  way  of  execution  of  a  *power, 
provided  the  wife,  previous  to  the  marriage,  conveyed  the 
estate  in  trust,  for  purposes  to  be  declared  during  her  cover- 
ture, by  deed  or  will ;  or,  provided  she  previously  raised  r 
use,  and  reserved  to  herself  a  power  over  it.     Lord  Hard 
wicke   only    suggests   doubts  whether   a  mere    ante-nuptia 
agreement  between  husband  and  wife,  while  the  legal  estate 
remains    in  her,  can   give  her  such  a  power  of  disposition 
To  enable  a  during  coverture.     It  appears  to  me,  that  this  doubt  turns 
disposc^'of  her  more  upon  a  point  of  technical  formality,  than  upon  any  solid 
real   estate,  in  ground  of  distinction,  or  real  principle  adapted  to  the  interest 
necessary  'Mlat  of  families,  or  apparent  to  the  good  sense  .and  understanding 

the  legal  estate 

should  be  vested  in  trustees ;  but  a  mere  agreement  entered  into  before  marriage  with  her  intended  1ms- 

bawl,  that  she  should  have  power  to  dispose  of  her  real  estate,  during  coverture,  will  enabh.  her  to  do  so. 

416 


CASES  IN  CHANCERY.  540 

of  mankind.     Why  should  not  the  heir  himself,  as  well  as        1818 
the  formal  trustee  standing  behind  him,  be  bound  to  give  effect  ^*~^-^s 
to  the  power  of  appointment  reserved  to  the  wife  ?  BRADISH 

The  case  of  Bramhall  v.  Hall   (Amb.  467.)  first  brought        u  y- 
up  the  question  upon  such  an  agreement,  without  any  con- 
veyance by  the  wife. 

Articles  were  entered  into  between  B.  and  his  intended 
wife,  who  was  then  a  widow,  seised  of  an  estate  in  fee,  by 
which  he  covenanted  that  she  should  have  power,  by  deed  or 
will,  to  dispose  of  her  estate,  after  her  decease,  to  any  person 
whatsoever,  and  that  he  would  do  any  act  to  confirm  it. 
After  marriage,  the  wife,  by  lease  and  release,  reciting  the 
articles,  conveyed  her  estate  to  trustees,  after  her  death,  to 
the  use  of  her  natural  son  for  life,  with  remainders  over. 
Lord  Northington  held,  that  the  wife  having  the  legal  estate 
in  her,  the  conveyance  was  not  good  to  pass  the  estate,  either 
as  a  conveyance,  or  an  execution  of  the  power. 

This  short  and  very  imperfect  note  of  the  case,  is  all  we 
have  in  the  report,  and  it  would  seem  from  it,  that  the  chan- 
cellor put  the  objection  on  the  ground  of  the  legal  estate  not 
having  been  conveyed  in  trust,  or  to  uses.  But  in  the  next 
case  that  followed  it,  and  decided  only  a  few  months  after- 
wards, Lord  Northington,  referring  to  this  *case,  says  he  was  [  *  541  ] 
of  opinion,  that  there  was  no  meritorious  consideration.  It 
was  upon  this  ground,  then,  that  the  case  was  decided,  and 
so  it  has  been  viewed  by  Mr.  Sugden,  in  his  accurate  "  Trea- 
tise of  Powers,"  (p.  151.)  It  may  then  be  considered  as  an 
authority  in  favor  of  an  appointment  by  a.  feme  covert  resting 
upon  an  ante-nuptial  agreement,  and  without  having,  prior 
to  the  marriage,  parted  with  the  legal  estate.  If  the  power 
had  been  void,  the  chancellor  would  not  have  recurred  to  the 
want  of  merit,  (for  so  I  understand  him,)  in  respect  to  the 
object  of  the  appointment  or  bounty.  If  the  husband  had 
been  the  grantee,  no  such  objection  could  have  been  made, 
according  to  the  case  before  Lord  Kins' ;  and  that  case,  in 

o  o  •* 

connection  with  this,  would  seem  to  contain  all  the  principles 
requisite  to  support  the  present  bill. 

But  in  the  case  of  Wright  v.  Englefidd,  (Amb.  468 ;  6 
Bro.  P.  C.  156.  S.  C.)  which  was  decided  in  the  same  year, 
and  which  is  more  generally  known  and  cited  by  the  name 
of  Wright  v.  Cadogan,  Lord  Northington  gave  the  subject  a 
deeper  investigation. 

In  this  case,  marriage  articles  were  entered  into  between 
the  intended  husband  and  wife ;  and  the  instrument  recited 
the  intended  marriage,  and  that  it  was  agreed  that  the  wife's 
existing  estate,  which  was  described  to  be  a  copyhold  estate 
of  inheritance,  and  a  rent  charge  for  life,  together  with  all 

VOL.  III.  53  417 


541  CASES  IN  CHANCERY. 

1818.  such  estate,  real  or  personal,  as  might  descend  or  come  to 
v^-s,-*^  her  during  coverture,  should  be  to  her  separate  use,  and  to 
BRADISH  be  applied  as  she,  by  deed  or  will,  should  direct.  The  hus- 
GIBBS.  band  covenanted  with  S.  and  J5.,  who  were  also  parties  to  the 
same  articles  of  marriage,  that  her  property  should  be  so 
subject  to  her  disposition,  and  that  he  would  execute  any 
deed  to  secure  the  same  to  her  separate  application  and  use. 
A  moiety  of  a  trust  inheritance,  of  which  the  legal  estate  was 
then  outstanding  in  the  defendants  as  trustees,  and  of  which 
she  had,  when  the  marriage  articles  were  made,  a  trust  of 
the  reversion  in  fee,  descended  to  her  after  the  marriage,  and 
[  *  542  ]  the  case  *says,  that  she  then  became  "  entitled  in  fee  simple 
possession "  to  her  rnoiety,  subject  to  the  performance  of 
certain  trusts.  She,  afterwards,  made  her  will,  and  under 
the  power  reserved,  and  to  which  she  referred,  she  devised 
her  moiety  of  the  inheritance  to  trustees,  to  the  use  of  her 
husband  for  life,  remainder  to  the  sons  of  the  marriage  in  tail 
male,  remainder  to  the  daughters  of  the  marriage  in  tail 
general,  and  in  default  of  such  issue,  to  her  own  right  heirs. 
The  plaintiff  was  her  only  son  by  a  former  husband,  and  the 
question  was  between  him  as  her  heir  at  law,  and  the  second 
husband,  and  his  surviving  daughters,  who  all  claimed  by  ap- 
pointment under  the  will  and  the  marriage  articles.  He  filed 
the  bill  to  have  a  conveyance  from  the  trustees,  and  they  filed 
a  cross-bill  for  directions. 

Lord  Northington  held,  that  the  will,  in  connection  with  the 
articles,  was  a  good  and  valid  appointment,  in  respect  to  the 
husband,  as  well  as  in  respect  to  his  children  ;  and  though  he 
is  made  to  say,  according  to  the  case  in  Ambler,  that  the 
provision,  being  for  children,  was  meritorious,  yet  by  the  de- 
cree, the  provisions  in  the  will  were  equally  carried  into  effect 
in  favor  of  the  husband.  He  said,  that  "if  a  woman,  before 
marriage,  retains  a  power  over  a  legal  estate,  to  be  exercised 
by  way  of  execution  of  a  power,  she  may  do  it." 

The  heir  carried  an  appeal  to  the  House  of  Lords,  on  the 
ground  that  the  appointment  was  void  as  against  him,  and 
his  counsel  insisted,  that  the  only  mode  of  enabling  a  feme 
covert  to  dispose  of  her  inheritance,  was  by  a  conveyance  be- 
fore marriage,  to  uses  or  trusts,  reserving  such  a  power,  or 
else  by  fine  after  marriage,  with  a  deed  to  lead  the  uses  of 
it,  reserving  such  power  to  her  over  the  inheritance.  They 
said,  that  unless  one  of  those  methods  was  taken,  her 
will  of  real  estate  was  void,  and  could  not  bind  her  heirs, 
though  it  bind  the  husband  who  was  a  party  to  the  marriage 
articles ;  that  in  this  case,  the  power  rested  only  in  covenant, 
|  *  543  ]  or  upon  articles  between  the  husband  and  wife,  without  *any 
estate  vested  in  trustees,  out  of  which  an  appointment  by 
418 


CASES  IN  CHANCERY.  51 

virtue  of  the  power  was  to  enure.     The  counsel  for  the  le-        1818. 
spondents,  on  the  other  hand,  urged,  that  as  the  lega  estate  ^^^^^^ 
was  already  in  trustees,  any  formal  conveyance  would  have      BRADISH 
oeen  a  mere  declaration  of  trust,  and  the  reasonableness  of        GIBBS. 
the  provision  in  the  will  was  also  urged. 

The  decree  was  affirmed,  and  from  the  argument  of  the 
appellant's  counsel,  (who  were  no  less  men  than  De  Grey 
and  Yorke,)  it  is  evident  that  they  did  not  consider  this  case 
as  satisfying  the  rule  in  Peacock  v.  Monk,  requiring  the  wife 
before  marriage  to  convey  the  estate  in  trust,  or  to  use,  with 
a  power  reserved  to  direct  the  uses  or  trusts.  Lord  Hard- 
wicke  clearly  alluded  to  the  solemn  act  and  deed  of  the  wife 
herself  altering  her  estate  before  marriage,  and  by  her  own 
free  act,  raising  uses  and  trusts  for  future  purposes,  as  being 
requisite  to  sustain  the  power,  and  so  did  the  distinguished 
counsel  in  the  above  case.  Here  was  no  such  act  of  hers, 
and  nothing  but  simple  marriage  articles  between  her  and 
her  husband  as  in  the  present  case ;  and  if  they  be  sufficient 
'in  all  cases  in  which  the  wife  is  seised  of  any  trust,  inherit- 
ancg  or  reversion,  to  support  her  will  during  coverture,  the 
farce  of  the  objection  is  gone.  I  consider  this  case,  then,  as 
containing  the  principle,  that  equity  will  carry  into  effect  the 
will  of  a.  feme  covert,  disposing  of  her  real  estate  in  favor  of 
her  husband,  and  to  relatives  who  are  not  her  heirs  at  law, 
provided  that  will  be  in  pursuance  of  a  power  reserved  to 
her  in  and  by  the  ante-nuptial  agreement  with  her  husband. 
It  is  said,  however,  that  the  conveyance  of  her  estate  in  re- 
version would  have  been  only  a  mere  declaration  of  trust, 
and,  therefore,  useless ;  but  might  she  not  have  transferred 
her  interest,  equally  as  if  it  had  been  a  legal  estate,  to  another 
person,  subject  to  such  uses  as  she  should,  afterwards,  during 
coverture,  by  deed  or  will  declare  ?  She  might  have  done 
some  act  varying  her  equitable  interest,  and  creating  new 
trusts,  so  as  to  have  satisfied  the  scruples  in  *t.he  case  of  [  *  544 
Peacock  v.  Monk.  But  this  was  not  done  or  required  in  the 
above  case ;  and,  I  think,  Lord  Kenyan  was  justified  in  re- 
ferring to  that  case,  (see  Doe  v.  Staple,  2  Term  Hep.  695.) 
as  evidence  that  the  doubts  of  Lord  Hardwicke  had  been 
removed,  and  that  a  bare  agreement  by  marriage  articles  was 
sufficient  to  support  the  will  even  against  the  heir ;  and  Mr. 
Sugden  (Treatise  of  Powers,  p.  151.)  cites  it  as  evidence  of 
the  same  fact.  It  was  said,  in  the  argument  of  the  present 
case,  that  Lord  Kenyan  must  have  misunderstood  the  report 
of  the  case  of  Wright  v.  Cadogan.  I  should  doubt  that  ex 
ceedingly.  He  was  very  familiar  with  equity  principles  and 
practice,  and  probably  understood  the  case  much  better  than 
those  who  have  only  the  printed  reports  as  a  guide ;  for  he 

419 


544  CASES  IN  CHANCERY 

1818.       nad  been  several  years  at  the  bar  when  that  case  was  arguea 
\« ^^v-«^x  and  decided  in  the  House  of  Lords,  and  he  speaks  of  the 
BRADISH      very  able  discussion  it  received  in  that  house. 
GIBBS.  The  case  °f  Rippon  v.  Dotvding  (Amb.  565.)  puts  the 

question  completely  at  rest.  In  that  case,  a  widow  was  seised 
of  a  freehold  estate,  and  previous  to  her  second  marriage ; 
her  husband  gave  a  bond  empowering  her  to  dispose  of  her 
freehold  estate,  by  deed  or  will,  notwithstanding  the  cov- 
erture. The  wife,  afterwards,  by  will,  gave  her  estate  to  her 
younger  children  in  fee,  who  exhibited  their  bill  against  the 
heir  to  have  a  conveyance  of  the  estate.  The  case  of  Wright 
v.  Lord  Cadogan  was  cited  as  being  in  point  for  the  prin- 
ciple there  determined,  which  was  the  performance  of  the 
marriage  agreement  as  against  the  heir.  The  other  side 
contended,  that  the  case  of  Wright  v.  Cadogan  differed  from 
the  other,  inasmuch  as  in  the  one  case  the  legal  interest  was 
in  trustees,  and  in  the  other  it  remained  in  the  wife. 

Lord  Camden  held,  that  though  the  two  cases  differed,  in 
respect  that  the  wife  had  only  an  equitable  interest  in  the 
one,  and  the  legal  interest  in  the  other,  yet  the  principle  of 
*  515  j  determination  was  the  same  in  both  ;  and  that  as  *the  Court 
decreed  performance  of  the  agreement  in  Wright  v.  Cadogan, 
which  was  a  trust  interest,  it  will  do  so  in  this,  which  is 
the  case  of  a  legal  interest.  He,  accordingly,  decreed  a 
conveyance. 

This  decision  was  made  in  1769,  and  it  has  never  been 
directly  questioned,  and  certainly  not  overruled. 

In  Compton  v.  Collinson,  (2  Bro.  Ch.  Rep.  383,  384,  385.) 
it  was  admitted  by  the  counsel  for  the  plaintiff,  that  if  there 
be  an  agreement,  prior  to  marriage  and  in  consideration  of 
marriage,  that  the  wife  might  dispose  of  her  own  property, 
it  would  have  been  held  good  in  equity,  and  the  wife  would 
have  been  competent  to  have  bound  herself  as  to  those  rights 
which  the  marriage  gave  her,  against  the  heir  of  the  husband. 
The  counsel  on  the  other  side,  and  who  represented  the  heir 
at  law,  also  admitted,  that  a  covenant  before  marriage  would 
have  given  the  wife  a  power  to  dispose  by  will. 

Such  language  of  counsel  on  each  side  is  very  good 
evidence  of  the  general  sense  of  JVestminster  Hall  on  this 
point  of  law,  and  that  the  cases  in  Ambler  were  received  as 
decisive  authority.  Nor  do  I  apprehend  that  there  is  any 
thing  in  Hodgden  v.  Lloyd,  (2  Bro.  Ch.  Rep.  534.)  to  weaken 
the  force  of  this  conclusion. 

In  that  case,  marriage  articles  were  entered  into,  by  which 
the  real  estate  of  the  wife  was  to  be  settled  to  the  joint  use 
of  the  husband  and  wife,  and  upon  the  survivor,  for  life  ;  and 
that  if  she  survived  him,  her  estate  was  to  be  settled  to  hei 
420 


CASES  IN  CHANCERY.  3-1 

own  use,  and  if  not,  the  estate  was  to  be  at  her  own  disposal.  1618. 

On  the  same  day,  and  previous  to  the  marriage,  she  made  v^^^s/-^. 

her  will,  and  gave  her  intended  husband  all  her  estate,  ab-  BRADISM 
solutely.  and  made  him  sole  executor.     The  marriage  took 

J '  01         T     i        •  I  GIBBS. 

place,  afterwards,  on  the  same  day.  bhe  died  without  re- 
voking or  altering  the  will,  and  the  husband  took  possession. 
The  question  arose  between  the  devisee  of  the  husband  and 
the  wife's  heir  at  law.  Lord  TAwr/oiw  held,  that  articles 
resting  in  agreement  *gave  the  husband  an  equitable  estate  [  *  5.16 
for  life  ;  but  that  the  will  was  revoked  by  the  subsequent  mar- 
riage. The  great  point  was,  whether  the  will  was  a  good 
execution  of  the  power.  The  chancellor  said  the  will  was 
not  well  made  under  the  power,  because  the  power  was  to 
make  a  will  after  marriage  ;  but,  in  the  course  of  his  opinion, 
there  is  this  observation  thrown  out,  that,  "  with  regard  to 
chattels,  the  husband,  by  contract  anterior  to  the  marriage, 
resting  only  in  agreement,  could  authorize  her  to  make  a  will ; 
but  in  order  to  make  a  will  of  real  estate,  he  must  part  with 
the  legal  estate  to  trustees,  by  agreement ;  whilst  resting  in 
agreement  .only,  he  cannot  bind  the  heir." 

I  believe  that  Acre  is  a  mistake  in  the  report ;  for  the 
observation  is  directly  against  the  decision  in  Rippon  v. 
Djwding,  which  was  cited  upon  the  argument,  and  not  ques- 
tioned by  the  counsel  for  the  heir  at  law.  They  put  the 
objection  to  the  will,  on  the  ground  of  a  revocation  by  mar- 
riage, and  that  it  was  not  in  pursuance  of  the  power,  because 
the  power  referred  to  an  act  q/£er  marriage.  Lord  Thurlow 
repeats  the  same  argument ;  whereas,  if  the  agreement  was 
insufficient  to  support  a  will  after  marriage,  by  way  of  ap- 
pointment, the  case  would  have  been  put  upon  that  ground, 
and  have  cut  short  much  discussion.  Lord  Thurlow  did  not 
so  much  as  notice  the  case  of  Rippon  v.  Dow  ding,  which 
was  cited  upon  the  argument,  and  which  he  certainly  would 
have  done,  out  of  self-respect,  at  least,  if  he  had  meant  to 
question,  and  much  more  to  overrule  it.  It  ought  farther  to 
be  observed,  that  the  counsel  on  each  side,  in  this  case,  also 
cited  the  decision  in  Wright  v.  Cadogan,  as  proving  that  an 
agreement  before  marriage  would  support  a  subsequent  dis- 
position ;  and  the  attorney-general  (who  was  afterwards 
Lord  Alvanley)  considered  it  as  resolving  the  doubt  of  Lord 
ILtrdwicke,  whether  a  mere  agreement,  or  articles  executory, 
would  operate  as  a  conveyance.  He  stated  the  rule  to  be, 
that  there  was  no  distinction  in  that  Court,  as  to  the  power 
of  a  *feme  covert,  whether  the  estate  be  a  legal  or  a  trust  [  *  547 
estate,  and  that  articles  would  convey  to  her  a  power  of 
disposing  of  either  during  her  marriage. 


547  CASES  IN  CHANCERY. 

1818.  The  most  accurate  writers  who  have  discussed  this  subject, 

N-X^N,^-^^  such  as  Sugden,  (Treatise  of  Powers,  151,  152.)  Powell, 
BRADISH  (Wood's  Conveyancing,  by  Poivett,  vol.  2.  p.  6.)  andAtherley, 
GIBBS.  (Treatise  on  Marriage  Settlements,  p.  336,  7.)  consider  the 
doubts  of  Lord  Hardwicke  as  clearly  resolved,  or  removed, 
by  the  subsequent  cases  which  we  have  been  considering. 
They  all  unite  in  opinion,  that  it  is  not  now  necessary  that  the 
legal  estate  should  be  vested  in  any  indifferent  person,  as  a 
trustee ;  and  that  if  the  intended  husband  should  covenant 
or  agree,  that  the  wife  might  dispose  of  her  estate,  it  would 
enable  her  to  do  so  in  equity.  "  By  a  mere  agreement," 
says  one  of  them,  "when  entered  into  before  marriage,  a 
feme  covert  may  dispose,  in  equity,  of  her  real  estate."  If 
such  writers  are  not  to  be  cited  as  authority,  (though  Powell 
was  much  relied  on  in  a  Pennsylvania  case,)  they  are  at 
least  good  in  evidence  of  the  sense  of  Westminster  Hall,  and 
very  conclusive  evidence  that  the  case  of  Rippon  v.  Dowding 
has  never  been  shaken. 

The  question  raised  in  this  case  was  also  fully  discussed 
by  the  Supreme  Court  of  Pennsylvania;  (2  Dallas^  199;  1 
Yeates's  Hep.  221.  S.  C.)  and  the  Court  professed  to  decide 
the  case  before  them  upon  the  settled  principles  of  the  English 
Court  of  Chancery. 

The  wife,  in  that  case,  before  marriage,  entered  into  articles 
of  agreement  with  her  husband  and  one  J.  W.,  by  which  it 
was  agreed,  that  her  estate  should  be  for  their  joint  use  during 
coverture,  and  if  she  should  survive  him,  the  whole  estate 
was  to  remain  to  her  as  if  no  marriage  had  taken  place ;  and 
that  she  should  have  power,  by  will,  to  dispose  of  the  same 
*o  such  persons,  and  for  such  uses,  as  she  should  see  fit. 
The  husband  covenanted  with  J.  W.  to  suffer  this  power  to 
[  *  548  ]  be  carried  into  effect.  She  ^married  without  having  con- 
veyed the  estate  to  trustees,  and  had  no  issue,  and  by  will 
devised  her  estate  to  her  nephews  and  nieces. 

The  point  was,  whether  the  will  was  sufficient  to  bar  the 
heir  at  law. 

It  was  held  by  all  the  judges,  (and  the  Court  then  con- 
sisted of  M'Kean,  chief  justice,  Shippcn,  Yeates,  and  Bradford. 
justices,)  that  the  will  operated  as  a  good  appointment  under 
the  articles,  and  that  the  heir  was  bound  without  any  legal 
estate  being  vested  in  trustees.  The  cases  of  Wright  v.  Cc- 
dogan,  and  of  Rippon  v.  Doivding,  were  considered  as  gov- 
erning the  case  and  settling  the  law ;  and  the  chief  justice 
admitted,  that  the  spirit  of  the  former  of  those  two  decisions 
implied  the  same  doctrine  with  the  latter. 

The  counsel  for  the  plaintiff  endeavored  to  take  this  case 
422 


CASES  IN  CHANCERY.  548 

out  of  that  of  Rippon  v.  Dowding,  on  the  ground,  that  the        1818. 
devisees  there  were  not  volunteers,  and  that  the  provision  ^*^s-+^> 
there,  for  the  younger  children,  was  meritorious.  BRADISH 

Two  of  the  cases  already  examined,  sustained  the  provision  GIBBS 
for  the  husband  ;  and  if  further  authority  was  wanting  to 
show  that  a  provision  for  him  is  deemed  meritorious,  and  that 
he  is  not  regarded  as  a  volunteer,  we  have  it  in  Sergeason  v. 
Sealey.  (2  Aik.  412.)  In  that  case,  a  widow  had  a  power, 
under  former  articles,  of  disposing  of  4,000  pounds,  by 
deed  or  will,  executed  in  the  presence  of  three  witnesses,  to 
any  person  she  should  appoint.  Previous  to  her  second 
marriage,  she,  by  articles  executed  in  the  presence  of  two 
witnesses  only,  appoints  the  sum  of  2,000  pounds,  out  of  the 
4,000  pounds,  to  be  for  the  use  and  benefit  of  her  intended 
husband.  The  remaining  2,000  pounds  she  made  a  voluntary 
disposition  of  by  will,  but  did  not  execute  it  in  the  presence 
of  three  witnesses.  Lord  Hardwicke  held,  that  the  articles 
upon  the  second  marriage  was  a  good  appointment  within 
the  power,  and  though  it  was  a  defective  appointment,  be- 
cause of  two  *witnesses  only,  yet  the  Court  would  supply  the  [  *  549  ] 
defect  where  it  was  executed  for  a  valuable  consideration. 
But  as  the  appointment  of  the  remaining  2,000  pounds  was 
not  for  a  valuable  consideration,  but  only  a  voluntary  dispo- 
sition, the  defect  in  not  pursuing  the  power  was  not  to  be 
aided  ;  and  it  was,  accordingly,  as  to  that  last  sum,  deemed  a 
void  appointment. 

So,  Lord  Eldon,  in  Parks  v.  White,  (11  Vesey,  222.) 
when  speaking  of  the  power  of  disposition  of  a  feme  covert 
over  estates  settled  to  her  separate  use,  observed,  that  "  the 
Court  had  no  difficulty  in  supposing  that  a  woman,  having 
such  an  interest,  might  give  it  to  her  husband  as  well  as 
to  any  one  else.  The  cases  never  intended  to  forbid  that ; 
and  if  he  conducts  himself  well,  I  do  not  know  that  she  can 
make  a  more  worthy  disposition ;  though,  certainly,  the  par- 
ticular act  ought  to  be  looked  at  with  jealousy."  Indeed,  it 
is  a  clear  point  throughout  the  books,  that  a  married  woman, 
having  a  power,  which  is  a  right  to  limit  a  use,  may  appoint 
to  her  husband,  in  like  manner  as  the  husband  may  appoint 
to  her.  (The  case  mentioned  by  Crew,  Ch.  J.,  in  Latch's 
Rep.  44.  Haider  v.  Preston,  2  Wils.  400.  Gilbert's  Uses 
and  Trusts  by  Sugden,  150.  note.)  In  the  case  of  the  Meth- 
odist Episcopal  Church  v.  Jaques,^  (decided  in  October,  1817,)  t  Ante,  p.  77 
in  which  the  power  of  the  wife,  over  her  property,  was  largely 
discussed,  it  appeared,  that  the  gifts  to  the  husband  had  been 
constantly  sustained  ;  and  the  only  check  to  them  suggested 
in  the  cases  is,  that  they  were  to  be  more  narrowly  inspected, 

423 


549  CASES  IN  CHANCERY. 

1818.       on  account  of  the  danger  of  improper  influence.     If  duty 
^^~^~+^  made  in  pursuance  of  the  power,  and  at  the  same  time  fairly 
BRADISH      made,  there  is  no  pretence,  in  any  of  the  cases,  that  a  gift  to 
GIBBS.        *ne  husband  is  not  to  be  supported. 

There  is  no  ground  for  the  suggestion,  that  a  husbana, 

who  takes  under  a  will  founded  on  marriage  articles  like  those 

in  the  present  case,  is  a  mere  volunteer  without  consideration. 

[  *  550  ]       The  principle  is  well  established,  (Marlboraugh  *v.  Godvlphin, 

Where  a  per-  2    Vesey,  78.)  that  where  a  person  takes  by  execution  of  a 

son  takes  by  the  i        ,    i  i         ,1  .1       •,          /•   ,1      ,  rr«i 

execution  of  a  power,  he  takes  under  the  authority  ot  that  power.  Ine 
power,  he  takes  meaning  is,  as  Lord  Hardwicke  expresses  it,  that  the  person 

under    the    au-    .    i         •       .1  •/•  ,i  i  • 

tiiority  of  that  takes  in  the  same  manner  as  if  the  power  and  instrument  ex- 
power,  ecuting  the  power  had  been  incorporated  in  one  instrument. 

A  husband,  in  i          •  /•     11,1  ,1  ,•          i      j  i 

regard  to  a  de-  and  as  ii  all  that  was  in  the  instrument  executing  had  been 
vise  to  him,  by  expressed  in  that  giving  the  power.  Now,  the  marriage  ar- 

1ns  wife,  in  exe-    .•  \  c          11°      ,,  •  •         .•  P  •  ,  •    , 

putionofapow-  tides  are  founded  on  the  consideration  ol  marriage,  which  is 

IT,  is  not  a  voi-  a  good  and  valuable  consideration  ;  and  the  provision  in  the 

'"' Marriage   is  will  is  founded  on  the  same  consideration  as  if  it  had  been  a 

a  good,  valua-  part  of  the  original  ante-nuptial  contract.     The   party  who 

hie,  and  mento-      ,    •  ,          ,°  ,.          *,.  ,          ,.,,  1,1 

rious  considera-  claims  under  the  execution  01  a  power,  makes  title  under  the 
tion  for  au  ante-  power  itself.  The  husband  is  frequently  called  the  next 
"rart'3  '"  friend  and  nearest  relation  to  the  wife ;  he  has  a  right  to  ad- 

minister, and  he  takes  her  personal  property,  according  to 
Lord  Thurlow,  (3  Bro.  10.)  on  that  ground,  and  not  on  that 
of  his  marital  rights.  It  is  a  general  rule,  that  equity  will  ex- 
ecute marriage  articles,  at  the  instance  of  all  persons  who  are 
within  the  influence  of  the  marriage  consideration  ;  and  Lord 
Macdesfield,  in  Osgood  v.  Strode,  (2  P.  Wms.  255.)  consid- 
ered the  husband  and  wife,  and  their  issue,  as  all  within  the 
influence  of  that  consideration.  A  late  case  in  chancery 
(Sutton  v.  Chctwynd,  3  Merivale.  249.)  only  held,  that  a  cov- 
enant, or  limitation  in  marriage  articles  to  strangers,  and  to 
a  brother,  were  merely  voluntary,  and  not  to  be  protected 
and  rendered  valuable  by  the  consideration  of  marriage. 

Though  I  concur  in  the  intimation  of  Lord  Eldon,  that  the 
husband's  claim  to  his  wife's  bounty  is  to  be  closely  inspected, 
and  wholly  free  from  symptoms  of  coercion  and  undue  in- 
fluence, yet  in  a  fair  case,  like  the  present,  which  has  no 
such  imputation,  and  where  there  were  no  offspring  to  claim  a 
divided  attention,  I  think  the  wife's  bounty  is  reasonable  and 
just.  It  springs  from  the  best  of  human  ties,  and  is  founded 
|  *  55 1  ]  on  the  warmest  affections  of  *the  heart.  There  is  less  danger 
of  improper  influence  exercised  over  the  wife,  in  case  of  an 
appointment  by  will  than  by  deed ;  because  a  will,  made  in 
execution  of  a  power,  still  retains  all  the  properties  of  a  will, 
and  is  revocable  at  the  pleasure  'of  the  wife. 
424 


CASES  IN  CHANCERY.  551 

Nor  is  there  any  weight  in  the  objection,  that  the  will        IbiS. 
makes  no  reference  to  the  marriage  articles.     It  is  still  in  x^-v^-^^ 
this  case  a  good  execution  of  the  power.     The  rule,  as  de-      BRAPISH 
clared  in  Sir  Edward  Clere's  case,  (6  Co.  17.  6.)  and  in  many        GIBBS 
subsequent  cases.  (2  Bro.  Ch.  Rep.  300, 301,303  ;  andBennet     Though    the 
v.  Aburrow.  8  Pesey.  609.)  is.  that  if  a  will  be  made  without  wi'1   do°es   n.ot 

r  »iT  '   •   •*  •    4.  refer     to      the 

any  reference  to  the  power,  it  operates  as  an  appointment  ante-nuptial 
under  the  power,  provided  it  cannot  have  operation  without  Contract,  yet  u 
the  power.     If  the  act  can  be  good  in  no  other  way  than  by  cuUon   of   the 
virtue  of  the  power,  and  some  part  of  the  will  would  other-  power.  lf  llcaa 

,         .  .  r,  .  .  .  ,,    have  no  opera- 

wise  be  inoperative,  and  no  other  intention   than  that  of   tion  without  the 
executing  the  power  can  properly  be  imputed  to  the  testator,  Power- 
the  act,  or  will,  shall  be  deemed  an  execution  of  the  power, 
though  there  be  no  reference  to  the  power.     Here  the  will 
can  have  no  effect  without  the  power,  not  even  as  to  personal 
property  ;  and  if  the  power  operates  upon  it  at  all,  it  operates 
equally  upon  every  part  of  the  disposition. 

My  conclusion,  accordingly,  is,  that  the  plaintiff  is  entitled     The  heir  at 
to  the  relief  sought  by  the  bill;  and  I  shall  decree  that  the  SidSJSj«V 
defendants  execute  and  deliver  to  the  plaintiff,  at  his  expense,  the  legal  estate 
a  release  in  fee,  to  be  approved  of  by  a  master,  of  their  legal  u 
right  and  title,  as  heirs  of  the  testatrix,  to  the  house  and  lot 
in  the  bill  mentioned  ;  and  that,  as  to  such  of  the  defendants 
as  have  not  answered,  and  may  not  be  within  the  jurisdiction 
of  the  Court,  that  they  be  perpetually  enjoined  from  as- 
serting, or  enforcing,  their  title  or  claim,  as  heirs  aforesaid, 
to  the  same ;  and  that  no  costs  be  allowed  by  either  party  as 
against  the  other. 

Decree  accordingly. 

VOL.  III.  54  425 


652* 


CASES  IN  CHANCERY. 


1818. 


KING 

v. 
KING. 


Noi-tmbe   9. 


*KiNG  against  KING  AND  SHARPS,  Adminisi  rators  ol 

KING. 

Where  administrators  sold  the  leasehold  estate  of  the  intestate,  and  took 
the  promissory  note  of  the  purchaser,  on  a  credit,  without  any  secu- 
rity for  the  payment  of  the  purchase  money,  the  administrators  were 
held  liable  to  the  heirs  for  the  amount,  the  purchaser  having  become 
insolvent. 

BILL  by  one  of  the  next  of  kin,  calling  on  the  defendants 
to  account  for  a  distributive  share. 

The  defendants  having  sold  the  leasehold  estate  of  the 
intestate,  and  taken  a  promissory  note  of  the  purchaser  on 
credit,  without  any  security,  by  mortgage  or  otherwise,  and 
the  purchaser  having  paid  part  of  the  purchase  money,  and 
become  insolvent  before  the  residue  could  be  collected,  the 
question  was,  whether  the  administrators  were  responsible  for 
the  lo«s  , 

H.  Bleecker,  for  the  plaintiff. 
W.  Hale,  contra. 

THE  CHANCELLOR  directed,  that  the   administrators  be 
charged  with  the  whole  amount  of  the  purchase  money; 
holding  them  guilty  of  negligence  in  parting  with  the  lease- 
hold  estate  without  payment  or  security. 
426 


CASES  IN  CHANCERY.  *553 

1818. 

BROWN 

*BROWN  against  W.  &  G.  RICKETTS,  Executors  of  C.    R^ETTS. 
BREWERTON,  deceased. 

[Commented  on,  1  Paige  22;  2  Id.  20.    Explained.  1  Paige  419  n.    Followed,  4  Johns. 

Ch.  202.] 

Creditors  and  legatees  are  exceptions  to  the  genera]  rule,  that  all  persons 

interested  in  the  fund  must  be  made  parties. 
Where  there  are  several  legacies  given,  which  are  to  be  increased   or 

diminished,  as  the  estate  should  increase  or  diminish,  one  legatee 

may  file  a  bill  in  behalf  of  himself  and  the  other  legatees,  who  may 

choose  to  come  in,  against  the  executors,  for  an  account  and  payment. 

But  where  the  bill  is  for  the  residue,  all  the  residuary  legatees  must  be 

made  parties. 
Where  the  plaintiff,  in  his  bill,  sets  up  a  claim,  independent  of  the  will, 

to  part  of  the  property  devised  in  trust  to  pay  the  legacies,  he  must  . 

elect  to  waive  his  claim,  or  wait  until  it  be  determined,  before  he  can 

call  for  an  account  or  payment  of  part  of  his  legacy. 

THE  bill,  which  was  filed  by  the  plaintiff,  in  behalf  of  Sept.  so,  and 
himself,  and  such  other  legatees  of  Catharine  Brewcrton,  Nov-9- 
deceased,  as  might  choose  to  come  in  and  contribute  to  the 
expense  of  the  suit,  stated  that  C.  B.,  on  the  5th  of  June, 
1815,  made  her  will,  by  which  she  devised  all  her  estate,  real 
and  personal,  to  her  executors,  in  trust,  to  sell  the  same,  and 
out  of  the  proceeds  of  the  rents,  profits,  and  sales  of  the 
real  estate,  in  the  first  ward  of  the  city  of  New-York,  con- 
stituting one  separate  fund,  to  pay  debts,  and  funeral  expenses, 
and  also  certain  legacies  which  were  specified,  to  near  twenty, 
and  among  which  was  one  to  W.  &/•  S.  Brown,  of  3,500 
dollars,  to  be  equally  divided  between  them,  &c.  That  if 
the  said  fund  should  prove  deficient,  or  exceed,  &c.,  then 
the  legacies  were  to  be  decreased,  or  increased,  in  proportion, 
&c.  The  testatrix  died  in  June,  1815  ;  and  the  bill  further 
stated,  that  the  testatrix  was  mistaken  as  to  her  being  the 
proprietor  of  lot  No.  27,  (part  of  the  real  estate  directed  to 
be  sold,)  that  the  plaintiff  believed  it  to  have  been  the  prop- 
erty of  Stephen  Richard,  and  had  devolved  on  the  plaintiff 
as  one  of  his  devisees ;  the  plaintiff  prayed,  that  his  rights, 
if  any  he  had,  might  be  preserved,  notwithstanding  the  bill ; 
and  that  he  might  *not  be  compelled  to  make  the  other  leg-  [  *  554  1 
atees  parties.  The  plaintiff  further  stated,  that  the  executors 
of  C.  B.  had  proved  the  will,  had  possessed  themselves  of 
all  the  real  and  personal  estate  of  the  testatrix,  &.C.,  had 
received  rents,  collected  debts,  and  sold  property,  and  re- 
ceived the  proceeds,  &c.,  the  amount  of  which  was  not  only 
sufficient  to  pay  debts  and  legacies,  but  would  greatly  in- 
crease the  latter,  &c.  That  W.  Brown  had  died,  and  the 
plaintiff  had  become  entitled  to  his  moiety  of  the  3,500 

42" 


554 


CASES  IN  CHANCERY. 


1318. 


BROWN 


dollars,  no  part  of  which  had  been  paid,  &c.  Prayer  thai 
the  defendants  may  set  forth  an  account  and  the  disposition 
of  the  assets,  &c.,  and  may  be  decreed  to  pay  the  plaintiff" 
the  said  legacy,  &c. 

The  defendants  answered,  and  proofs  were  taken  in  the 
cause,  which  came  on  to  be  heard  this  day. 

September  so.  Burr,  for  the  plaintiff.  To  show  that  the  plaintiff  might 
sue  for  himself,  and  those  who  might  elect  to  come  in  as 
parties,  he  cited  2  Ch.  Cos.  124,  178.  Mitf.  PL  145. 
2  Freeman's  Rep.  9.  a.  13  Tesey,  397.  16  Fesey,  325. 

Riggs,  contra,  insisted,  1.  That  the  defendants  being 
trustees,  and  the  plaintiff  claiming  as  one  of  the  cestui  que 
trusts,  he  could  not  support  this  bill,  for  want  of  proper 
parties,  as  the  other  cestui  que  trusts  were  neither  plaintiffs 
nor  defendants  ;  2.  That  as  the  bill  states,  that  a  lot  of  land, 
part  of  the  property  devised,  and  of  the  fund  out  of  which 
he  seeks  payment  of  the  legacy,  belongs  to  him,  and  not  to 
the  estate  of  the  devisor,  the  bill  must  be  dismissed,  or  the 
plaintiff  be  compelled  to  elect  to  claim  under  the  will,  and 
extinguish  his  pretended  claim  to  that  part  of  the  trust  estate, 
before  he  can  call  for  an  account,  as  a  legatee. 

THE  CHANCELLOR.  1.  The  first  objection  made  at  the 
hearing  is  a  want  of  proper  parties. 

*  555  ]  *It  is  contended  on  the  part  of  the  defendants,  that  all  the 

legatees  concerned  in  the  fund  out  of  which  the  3,500  dollar's 
claimed  by  the  bill  is  to  arise,  ought  to  have  been  made 
parties. 

This  question  of  parties  is  frequently  perplexing,  and  diffi- 
cult to  be  reduced  to  rule  ;  but  it  is  stated  in  the  books,  that 
creditors  and  legatees  form  exceptions  to  the  general  rule, 
that  all  persons  interested  in  the  fund  must  be  parties.  One 
creditor,  or  one  legatee,  may  sue  on  behalf  of  himself  and  the 
rest,  and  the  others  may  come  in  under  the  decree.  The 
case  of  creditors  is  a  familiar  exception,  and  the  exception  as 
to  legatees,  not  being  residuary  legatees,  seems  to  be  equally 
well  known. 

In  Haycock  v.  Haycock,  (2  Chan.  Cos.  124.)  there  were 
separate  legacies  to  A.,  B.,  and  C.,  and  B.  sued  the  execu- 
tor, who  pleaded  in  abatement  the  legacy  to  C.,  and  that  by 
the  will,  (as  in  the  present  case,)  the  legacies  were  to  be  in- 
creased or  diminished  as  the  estate  should  increase  or  dimin- 
ish, and  that  C.  ought  to  be  a  party,  "  for  that  the  account 
with  the  plaintiff  would  not  conclude  C.,  and  so  the  defendant 
would  be  put  to  two  accounts,  and  double  proof  and  charge." 
428 


CASKS  IN  CHANCERY.  555 

The  objection  was  here  placed  in  the  strongest  point  ol         1818. 
view ;  yet  it  was  urged,  on  the  other  side,  that  where  legacies  \^*~^~ «•»— ' 
were  given  to  divers  persons,  each  alone  might  sue  for  his       BROWN 
legacy,  and  the  defendant  was  ordered  to  answer.  RICKFTTS 

The  same  objection  was  raised  by  the  executor  against  a 
suit  by  one  legatee,  in  the  Atto rncy- General  v.  Ryder,  (2  Chan 
Cos.  98.)  and  it  met  with  the  same  fate. 

It  was  conceded,  by  the  counsel  on  each  side,  in  Good  v. 
Blewitt,  (13  F'esey,  399.)  that  bills  by  creditors  and  legatees 
were  exceptions  to  the  general  rule  requiring  all  parties ;  and 
that  one  might  sue  on  behalf  of  himself  and  the  rest ;  but  it 
was  admitted,  that  in  bills  for  the  residue,  all  the  residuary 
legatees  must  be  parties,  and  so  it  was  *ruled  in  Parsons  v.  [  *  556  ] 
Neville,  (3  Bro.  Chan.  Rep.  365.)  The  same  rule,  with  the 
same  exception,  was  declared  by  Lord  Eldon,  in  Cockburn  v. 
Thompson.  (16  Fesey,  327,  328.) 

It  seems  to  be  deemed  material  in  these  cases  of  creditors 
and  legatees,  that  the  bill  should  be  stated  to  be  on  behalf  of 
the  plaintiff,  and  all  the  other  persons  concerned  in  the  sub- 
ject matter,  so  that  the  others  may  all  come  in  under  the  de- 
cree. (Sir  J.  Strange,  in  2  Vesey,  313.  Chancey  v.  May, 
Free,  in  Chan.  592.  Good  v.  Blewtt,  13  Vesey,  399.) 

In  Wiser  v.  Blachly,  (1  Johns.  Ch.  Rep.  438.)  the  same 
rule  was  noticed,  that  in  a  bill  by  a  creditor  or  legatee,  it  was 
not  necessary  to  make  any  other  person  than  the  executor 
or  personal  representative  a  party ;  and  decisions  to  that 
effect  by  Lord  Hardwicke  and  Lord  Rosslyn  were  referred 
to.  There  is,  consequently,  nothing  in  the  first  objection.  - 

2.  Another  objection  is,  that  the  plaintiff,  in  his  bill,  ad- 
vances a  claim,  independent  of  the  will,  to  part  of  the  very 
fund  from  which  his  legacy  arises,  which  claim  is  repugnant 
to  that  set  up  as  a  legatee. 

The  lot  No.  27,  mentioned  in  the  will,  constituted  part  of 
me  fund  out  of  which  the  legacies  to  the  plaintiff  and  others 
were  to  be  paid,  and  the  plaintiff  cannot  have  the  proceeds 
of  that  lot,  as  a  legacy,  and  yet  set  up  a  claim  to  that  lot  in 
his  own  right,  adverse  to  the  title  of  the  testatrix.  The  claim 
must  be  abandoned  or  disposed  of  before  he  can  be  entitled 
to  the  legacy.  Noras  it  sufficient  for  the  plaintiff  to  claim, 
for  the  present,  his  proportion  of  the  legacy  arising  out  of 
the  residue  of  the  fund,  and  leave  his  claim  as  a  legatee  on  the 
disputed  part  of  the  fund,  to  abide  the  future  event  of  the 
claim.  This  would  be  multiplying  suits,  and  might  render 
the  defendants  liable  to  another  account  for  his  proportion 
of  the  proceeds  of  that  lot,  after  the  plaintiff's  claim  had  been 
determined  against  him.  He  must  come  into  Court  upon 
such  terms,  as  that  the  account  *to  be  taken  and  decree  made  [  *  557  ] 

429 


557  CASES  IN  CHANCERY. 

1818.       m  tms  cause,  will  determine  his  entire  right   as  a  legatee. 

v^~v— "^  He  must  either  waive  his  claim,  or  wait  until  it  be  determined. 
BROWN       The  Court  never  will  permit  a  plaintiff  to  divide  an  entire 
RICKETTS.     demand  into  parcels,  and  to  make  different  suits  in  succession, 
when  one  would  be  sufficient. 

The  plaintiffmust.be  put  to  his  election;  and  there  are 
some  minor  points  which  need  not  be  discussed ;  but  I  will 
endeavor  to  embrace  in  the  decree  all  the  points  in  this  case 
of  "  entangled  equity." 

Decree.  The  following  decree  was  entered :  "  That  the  complain- 

ant, within  thirty  days,  release  to  the  defendants,  as  executors, 
aforesaid,  and  for  the  exclusive  benefit  of  the  fund  mentioned 
in  the  will,  at  his  election,  either  all  his  right  and  title,  as  a 
claimant  to  lot  No.  27,  in  the  pleadings  mentioned,  or  all  his 
right  and  title  as  a  legatee,  to  any  part  of  the  proceeds  of  the 
said  lot,  and  execute  and  deliver  such  release  to  the  defend- 
ants, or  their  solicitor,  for,  and  on  their  behalf,  after  the 
same  shall  have  been  approved  of  by  one  of  the  masters  of 
this  Court,  or  that  the  bill  stand  dismissed:  And  it  is  further 
ordered,  adjudged,  and  decreed,  that  in  case  such  release  of 
his  right  and  title,  as  a  claimant  of  the  lot,  be  given,  that  it 
then  be  referred  to  one  of  the  masters  of  this  Court,  to  take 
and  state  an  account  of  the  said  fund,  and  of  the  debts  and 
funeral  expenses  chargeable  thereon ;  and  that  the  defend- 
ants, as  soon  as  conveniently  may  be,  after  such  release  shall 
have  been  duly  executed  and  delivered,  cause  the  said  lot  to 
be  sold  at  public  auction,  on  reasonable  previous  notice,  and 
that  the  proceeds  arising  therefrom  be  included  in  the  said 
account :  But  that  if  such  release  of  his  right  and  title,  as  a 
legatee,  be  given,  that  then  the  said  account  be  taken  exclu- 
sive of  the  said  lot  or  its  proceeds :  And  further,  that  in  taking 
such  account,  the  legacy  to  Paul  R.  Randall  is  to  be  con- 
sidered subject  to  the  same  increase  or  diminution  as  the 

|  *  553  ]  other  legacies  ;  and  the  master,  in  taking  the  account  *of  the 
debts,  if  any  existing,  and  chargeable  on  the  estate,  include 
the  demand  of  the  plaintiff,  if  any,  as  a  creditor,  and  that  he 
specially  report  the  proofs  and  allegations  before  him  in  re- 
spect to  such  demand ;  and  in  case  of  such  reference,  the 
question  of  costs,  and  all  other  and  further  questions,  are  in 
the  mean  time  reserved." 
430 


CASES  IN  CHANCERY. 


PROUP  against  SHERWOOD  AND  WOOD. 


TROOP 

v. 
SHERWOOD. 


Where,  after  publication  passed,  a  party  files  articles,  and  gives  notice  of 
the  examination  of  witnesses  to  impeach  the  credit  of  former  wit- 
nesses, the  adverse  party  may  examine  witnesses  to  support  the  cred- 
it of  his  witnesses  who  have  already  deposed,  and  is  entitled  to  a 
rule  to  produce  witnesses,  and  pass  publication,  as  in  other  cases. 

A  copy  of  articles  filed,  witn  notice  of  the  examination  to  discredit  wit- 
nesses, must  be  served  on  the  adverse  party,  within  14  days  after  ob- 
taining a  copy  of  the  depositions. 

And  copies  of  the  interrogatories  to  be  administered  to  the  witnesses  must 
be  furnished  to  the  adverse  party  six  days,  at  least,  before  the  day 
assigned  for  their  examination. 

It  seems,  that  articles  to  impeach  the  credit  of  witnesses  after  publication 
passed,  may  be  filed  after  the  cause  has  been  set  down  for  hearing. 

The  rule  of  evidence  as  to  impeaching  the  credit  of  witnesses  who  have 
been  examined,  should  be  the  same  in  equity  as  at  law :  The  inquiry 
ought  to  be  general,  as  to  the  general  character  of  the  witness  for 
veracity. 

But  it  seems,  that  on  a  special  application  of  the  Court,  the  inquiry  may 
be  allowed  to  go  beyond  the  general  credit,  as  to  particular  facts 
affecting  his  character,  provided  those  facts  are  not  material  to  the 
matter  in  issue  between  the  parties. 

VAN  VECHTEN,  for  the  defendants,  moved  to.  pass 
publication  (of  depositions  taken  to  impeach  the  credit  of  the 
plaintiff's  witnesses)  in  this  cause,  instanter.  He  read  the 
affidavit  of  S.,  one  of  the  defendants,  and  who  is  solicitor  for 
the  other,  stating  that  on  the  4th  of  August  last,  he  first  as- 
certained that  publication  had  passed  in  this  cause ;  and  he 
made  application  to  the  Court  on  the  17th  of  August,  for  leave 
to  examine  other  witnesses,  which  was  *denied.  That  on 
the  17th  of  October  last,  he  renewed  the  application,  on 
affidavits  more  precise  as  to  facts  and  dates ;  but  it  was 
again  refused.  That  about  the  first  of  October  last,  he  ob- 
tained copies  of  the  depositions  of  the  plaintiff's  witnesses, 
and  having  ascertained  facts  which  induced  him  to  believe 
that  the  testimony  was  untrue  in  several  important  particu- 
lars, he  prepared  articles  to  impeach  the  testimony,  and  in- 
terrogatories to  several  witnesses  to  be  examined,  for  that 
purpose,  and  gave  notice  of  their  examination  before  the 
examiner,  at  Utica,  on  the  30th  of  October  last.  That  he, 
this  day,  proposed  to  the  plaintiffs  to  consent  to  have  publi- 
cation pass  as  to  those  depositions,  so  that  the  defendant 
might  be  ready  for  hearing  at  the  next  Court ;  but  the  plain- 
tiff's solicitor  refused  his  consent,  and  the  cause  is  noticed  for 
hearing  on  Wednesday  next. 

431 


Nrsember  9. 


559  ] 


559  CASES  IN  CHANCERY. 


1818.  Van  Bar  en  (attorney-general)  and  Henry,  contra.     Thcj 

v^  «*-x'—  ^x  read  affidavits,  stating,  that  three  witnesses  were  examined, 

TROUP       on  the  part  of  the  plaintiff,  in  July,  1817,  and  the  rule  for 

SHERWOOD.    publication  passed  in  December  last.     That  on  the  19th  of 

October  last,  the  cause  was  set  down  for  a  hearing  on  the 

llth  of  November  instant,  and  notice  thereof  served  on  S., 

one  of  the  defendants,  on  the  24th  of  October.     That  on 

the  26th  of  October,  the  plaintiff's  solicitor  received  notice 

that  articles  had  that  day  been  filed,  impeaching  the  plaintiff's 

witnesses,  with  a  copy  of  the  interrogatories,  and  notice  of 

the  examination  of  certain  persons  in  Utica,  on  the  30th  of 

October.     The  notice   mentioned,   that   the   defendants  in- 

tended to  examine  five  witnesses,  who  were  named,  to  the 

credit  of  the  three  witnesses  already  examined  in  the  cause. 

There  were  six  interrogatories,  some  of  which  inquired  as  to 

all  the  facts  and  merits  of  the  cause  ;  and  the  articles  filed 

to  discredit  the  testimony  of  the  plaintiff's  witnesses,  not  only 

stated  that  the  witnesses  were  of  bad  character,  &c.,  but 

[  *  560  ]       stated  *the  particular  facts  in  their  depositions  which  were 

alleged  to  be  untrue. 

The  counsel  for  the  plaintiff  insisted,  that  the  motion 
ought  not  to  be  granted,  1  .  Because  the  notice  and  copy  of 
the  articles  were  not  served  within  14  days,  according  to  the 
27th  rule  of  the  Court  : 

2.  Because  the  interrogatories  were  not  served  six  days 
before  the  examination,  according  to  the  28th  rule  of  the 
Court  : 

3.  Because   the   articles   were    drawn    and    served   after 
the  cause  was  set  down  for  a  hearing,  and  notice  thereof 
served  : 

4.  Because  the  interrogatories  were  not  confined  to  the 
character  of  the  witnesses  intended  to  be  impeached,  but 
included  various  material  facts  in  issue  between  the  parties  : 

5.  Because  a  motion  to  pass  publication  on  these  articles, 
v.-iihout  a  previous  rule  to  produce  witnesses,  would  deprive 
tiie  plaintiff  of  an  opportunity  to  rebut  the  testimony  of  the 
defendant's  witnesses,  &c. 

THE  CHANCELLOR.  The  motion  on  the  part  of  the  de- 
fendants is  for  a  rule  to  pass  publication,  instanter.  The 
publication  here  alluded  to  does  not  relate  to  the  testimony 
taken  in  chief;  for,  as  to  that  testimony,  publication  has 
passed  long  ago.  It  relates  to  the  testimony  which  is  pre- 
sumed to  have  been  taken  within  a  few  days  past,  before 
the  examiner  at  Utica,  in  order  to  impeach  the  credit  of  one 
or  more  of  the  plaintiff's  witnesses. 

There  are  several  objections  to  this  motion  : 
432 


OASES  IN  CHANCERY.  560 

1.  It'  we  were  to  assume,  in  favor  of  the  defendants,  that        1818 
the  testimony  has  been  regularly  and  duly  taken,  the  plain-  ^^-^~^, 
tiff  is  entitled  to  a  rule  to  produce   witnesses,  and  to  pass        TROUP 
publication,  in  this  case,  as  in  all  others.     He  is  at  liberty  to  SaK^0(>1> 
examine,  on  his  part,  to  support  the  credit  of  his  witnesses, 

and  depositions,  taken  upon  such  an  occasion,  *must  be  pub-  [  *  561 
lished,  as  in  other  cases.  The  rule  is  so  laid  down  in  the 
books  of  practice.  (Gilbert's  F.  Romanum,  148.  1  Ham- 
soli's  Ch.  Prac.  511.)  The  plaintiff  is,  then,  entitled  to  his 
successive  rules,  to  produce  witnesses,  and  pass  publication, 
of  three  weeks  each,  according  to  the  settled  practice  of  the 
Court.  But, 

2.  The  examination,  of  which  publication  is  now  sought, 
was  irregular;  for  a  copy  of  the  articles  filed  to  discredit  the 
witnesses,  together  with  notice  of  the  examination,  ought  to 
have  been  served  on  the  adverse  party  within  fourteen  days 
after  obtaining  a  copy  of  the  depositions.     (Rule  27.)     The 
defendant,  who  acts  for  himself,  and  as  solicitor  for  his  co- 
defendant,  admits,  that  he  obtained  a  copy  of  the  depositions 
about  the  1  st  of  October,  and  it  was  not  until  after  the  26th  of 
October  that  the  articles  were   filed  and   the  notice  given. 
There  has  been  no  application  to  the  Court  to  enlarge  the 
time  in  this  case,  nor  does  any  sufficient  reason  appear  why 
the  rule  was  not  complied  with.     The  consequence  is,  ac- 
cording to  the  language  of  the  rule,  that  "  the  cause  is  not 
to  be  delayed  on  account  of  such  examination  ; "  and  it  must 
be  delayed,  if  we  support  the  examination ;  for  the  plaintiff,  * 
in  that  case,  will  be  entitled  to  his  rule  to  produce  witnesses. 
If  the  examination  be  supported  at  all,  it  must  be  upon  the 
admission  of  all  the  rights  of  the  opposite  party. 

3.  Another  objection  to  the  regularity  of  this  examination 
is,  that  the  interrogatories  were  not  furnished  six  days  before 
the  day  assigned  for  the  examination,  which  was  requisite  by 
another  settled  rule  of  the  Court.     (Rule  68.) 

Either  of  these  grounds  are  fatal  to  the  motion. 

It  was  urged,  also,  that  such  a  charge  could  not  be  made 
after  the  cause  was  set  down  for  hearing.     I  find,  in  Russel 
v.  Atkinson,  (Dickens,  532.)  that  the  application  was  held 
regular,  after  the  cause  had  been  set  *down,  and,  therefore,       [  *  562  J 
I  do  not  place  myself,  at  present,  upon  that  point. 

But  the  interrogatories,  and  the  articles  impeaching  the 
witnesses,  have  been  produced  and  commented  upon ;  and 
I  think  the  occasion  requires,  that  I  should  take  some  notice 
of  the  extent  to  which  this  inquiry  is  attempted  to  be  carried. 
It  is  plain  to  perceive,  that  the  interrogatories  do  go  into  the 
merits  of  the  issue,  under  pretence  of  examining  a*  to  credit 
only.  This  cannot  be  permitted  ;  for  it  would  be  indirectly 

VOL.  III.  55  433 


562 


CASES  IN  CHANCERY. 


1818.       breaking  down  those  ancient  and  salutary  rules,  which  re- 
v^^-s^-^^/  quire  the  examination  on  the  merits  to  be  closed  as  soon  as 

TROUP'       publication  has  passed. 

SHERWOOD.  ^  may  be  somewhat  difficult  to  reconcile  all  the  cases, 
and  to  define  the  precise  limits  within  which  these  special 
examinations  are  to  be  confined.  I  have  endeavored  to 
discover  the  principle  on  which  they  ought  to  rest. 

In  Gill  v.  Watson,  (3  Aik.  521.)  Lord  Hardwicke  said, 
that  at  law  you  could  only  examine  to  the  general  credit ;  but 
that  in  equity  the  witness  must  be  able  to  answer  any  par- 
ticular charge,  because,  by  the  mode  of  the  examination,  he 
has  time  for  recollection.  The  reason  assigned  is  not  suffi- 
cient for  the  distinction ;  and  the  reporter,  Mr.  Atkyns, 
adds,  by  way  of  quare,  whether  there  be  any  such  distinction. 
He  says,  that  Mr.  Cappen,  an  eminent  and  experienced 
practitioner,  told  him,  that  examinations  to  the  credit  were 
general  here  as  well  as  at  law,  and  so  was  the  form  of  the 
interrogatories. 

The  doubt,  in  this  case,  is  perfectly  warranted  by  the 
authority  of  Baron  Gilbert,  (Forum  Romanum,  147,  8.)  who 
says,  that  the  rule  of  evidence  is  the  same  here  in  equity  as 
it  is  at  law,  and  that  the  inquiry  only  relates  to  those  crimes, 
or  that  general  bad  character  which  would  disqualify  or 
discredit  the  witness  at  law. 

In  Purcell  v.  MNamnra,  (8  Vesey,  324.)  the  point  was, 
however,  considered  as  unsettled,  even  after  the  accession 
[  *  563  ]        *of  Lord  Eldon ;  and  it  underwent  much  discussion  in  that 
case. 

The  motion  there  was  for  leave  to  exhibit  articles  as  to  the 
credit  of  a  witness,  interrogating  him  as  to  particular  facts, 
whether  he  had  not  been  a  woollen  draper,  and  insolvent,  &c. 

The  counsel  against  the  motion  contended,  that  the  only 
point  to  which  they  could  examine,  was  the  general  one, 
whether  the  witness  had  credit  to  be  believed  on  his  oath, 
and  that  there  was  no  instance  of  liberty  given  to  contradict 
any  fact  sworn  to  in  the  depositions  published. 

But  the  counsel  on  the  other  side  mentioned  instances  of 
such  examinations  going  into  particulars ;  and  the  nature  of 
those  particulars  is  worthy  of  notice.  In  one  case,  the  wit 
ness  had  deposed  in  chief,  that  she  had  lived  with  the  de- 
fendant in  the  particular  capacity  of  a  milk-maid  ;  and  the 
charge  against  her  credit  was,  that  she  did  not  live  with  him 
in  that  or  any  other  capacity.  In  another  case,  the  witness 
had  stated,  that  she  was  a  widow ;  and  the  charge  was,  that 
she  was  a  wife  to  the  defendant.  It  will  readily  be  perceived, 
that  those  were  cases  of  a  particular  solitary  fact,  although 
dehors  the  matter  in  controversy,  and  that  they  had  not  the 
434 


CASES  IN  CHANCERY.  563 

remotest  connection  with  each  other.     The  fact  stood  dis-        1818 
tinctly  by  itself,  and  no  art  or  stratagem  could  conduct  the  \^~^~*+**> 
inquiry  to  the  forbidden  ground  of  the  matter  in  issue.     Lord        TRUUP 
Eldon  observed,  that  if  you  were  to  examine  as  to  what  was    SHERWOOD. 
material  in  the  cause,  under  color  of  examining  to  the  credit, 
the  allegation  in  favor  of  such  examinations  would  be  made 
in  every  case,  and  would  be  endless.     He,  accordingly,  con- 
cluded, that  the  party  was  at  liberty  to  examine  by  general 
interrogatories  to  credit,  and  as  to  such  particular  facts  only 
as  were  not  material  to  what  was  in  issue  in  the  cause. 

We  are  to  bear  in  mind,  that  the  case  in  which  this  de- 
cision was   made,  was  only  as  to  the  inquiry,  whether  the 
^witness  had  been  a  woollen  draper,  and  whether  he  had        [  *  564  ] 
been  insolvent. 

The  rule  in  this  case  was  implicitly  followed  in  Wood  v. 
Hammerton ;  (9  Vesey,  145.)  and  in  Carlos  v.  Brooks,  (10 
Vesey,  49.)  Lord  Eldon  explained  more  at  large  the  princi- 
ples of  his  former  decision.  He  said,  that  the  examination, 
as  to  credit,  was  to  be  confined  to  general  credit,  by  pro- 
ducing witnesses  to  swear  that  the  person  is  not  to  be  be- 
lieved upon  his  oath  ;  and  that  if  you  find  him  swearing  to  a 
matter  not  in  issue,  there  was  no  danger  in  permitting  the 
opposite  side  to  state  that  such  fact  was  false.  He  said,  that, 
in  Pur  cell  v.  M'Namara,  it  was  agreed  to  be  competent  to 
examine  any  witness  to  the  point,  whether  he  would  believe 
that  man  upon  his  oath ;  and  in  that  case  the  witness  went 
into  the  history  of  his  own  life,  and  of  his  solvency,  though 
there  was  no  matter  in  issue  as  to  his  insolvency,  or  whether 
he  had  compounded  with  his  creditors.  It  was,  accordingly, 
allowed  to  the  other  party,  by  way  of  affecting  his  credit,  to 
show,  that  what  he  had  related  of  himself,  and  which  had  no 
concern  with  the  cause,  was  false. 

The  point  again  came  up  before  Lord  Eldon,  in  White  v. 
Fussell.  (1  Fes.  &/•  Bea.  151.)  The  defendant  had  obtained 
an  order  for  a  commission  to  examine  witnesses  to  the  credit 
of  a  witness,  and  as  to  such  particular  facts  as  were  not  ma- 
terial to  what  was  in  issue.  (Vide  the  order  in  this  case  in 
2  Fes.  fy  Bea.  267.  note.) 

The  lord  chancellor  observed,  that  applications  of  that 
kind  were  always  regarded  with  great  jealousy  ;  that  the  Court 
requires  that  the  examination  should  be  only  to  the  credit  of 
the  witness,  and  to  facts  affecting  credit  and  character  only, 
and  those  not  material  to  the  matter  in  issue. 

This  case  contains  an  important  observation,  in  that  part 
of  the  opinion  which  limits  the  particular  facts  to  such  as 
affect  the  credit  and  character  only,  and  under  this  limitation, 
*and  after  confining  the  inquiry,  as  all  the  cases  seem  to  d  >,  f  *  565  ] 

4*5 


565  CASES  IN  CHANCERY. 

1818.  to  some  special  prominent  facts,  totally  detached  from  the 
v^^^-^-^^x  cause,  I  do  not  know  that  the  rule  is  very  liable  to  abuse. 
TROUP  In  every  possible  allowance  of  it,  I  apprehend  we  ought  to 
watch  *he  application  with  a  narrow  scrutiny.  I  should, 
however,  if  the  point  was  res  Integra,  prefer  the  simplicity 
and  safety  of  the  old  rule  of  practice,  recommer.ded  by  the 
counsel  in  Atkyns,  and  explicitly  laid  down  by  Lord  Ch. 
Baron  Gilbert,  and  confine  the  inquiry,  as  at  law,  to  the  gen  • 
eral  character  of  the  witness,  as  a  man  of  veracity.  The 
vice-chancellor,  in  Watmore  v.  Dickenson.  (2  Fes.  fy  Bca. 
267.)  said,  that  the  only  proper  question  was,  whether  th  3 
witness  was  worthy  of  belief  on  oath. 

If,  however,  we  take  Lord  Eldon's  rule,  limited  and  regu- 
lated as  it  has  been  by  the  process  of  his  slow  and  cautious, 
but  generally  unerring,  judgment,  and  apply  it  to  the  present 
case,  we  cannot  hesitate,  for  a  moment,  in  condemning  the 
interrogatories  before  us,  as  palpable  violations  of  the  rule. 
They  go  at  once  to  the  very  ground  of  controversy,  and  touch 
the  merits  of  the  case.  If  the  examinations  were  before  mo, 
they  would  be  immediately  suppressed. 

But  while  the  motion  must  be  denied,  as  well  on  the  merits 
as  on  the  point  of  regularity,  it  becomes  a  question,  whether 
I  ought  not  to  permit  an  inquiry  as  to  the  general  credit  of 
the  witnesses.  The  suitable  restrictions  upon  these  collateral 
examinations  has  never  before,  within  my  knowledge,  been 
discussed  in  this  Court.  They  have  been  unsettled,  until  a 
very  recent  date,  in  England,  and,  perhaps,  it  may  be  deemrd 
reasonable,  under  these  circumstances,  to  allow  the  defen  1- 
ants  an  opportunity  to  question  the  credit  of  the  witnesses. 
It  is,  however,  rather  a  matter  ex  gratia,  than  founded  on 
any  right  on  the  part  of  the  defendants  to  ask  it.  Whilsl  1 
lay  down  rules  for  the  future  government  of  the  Court,  lam 
[*5(6]  very  anxious  *that  these  expositions  of  the  law  should  not 
operate  as  a  surprise  upon  the  party  in  the  given  case. 

I  shall,  therefore,  allow  the  defendants  to  file  articles  of 
impeachment  de  novo,  confined  to  the  question  of  geneial 
credit,  on  condition  that  they  be  filed  by  the  opening  of  the 
Court  to-morrow,  and  that  the  plaintiff's  costs  of  setting 
down  this  case  for  a  hearing  at  this  term,  be  paid  at  the  same 
time.  It  is  most  reasonable  that  the  defendants  should  pay 
these  costs ;  for  the  irregular  examination  in  question  was 
conducted  contrary  to  the  printed  rules  of  this  Court,  which 
they  must  have  had  before  them.  If  an  inquiry  is  to  be  had, 
it  ought  to  be  confined  to  the  general  character  of  the  wit- 
nesses for  veracity ;  for  the  affidavit  of  the  defendant  states 
no  particular,  special,  detached  facts,  proper  for  a  more  par 
ticular  examination.  When  the  inquiry  is  to  go  beyond  the 
436 


CASES  IN  CHANCERY.  566 

general  character,  it  cannot  be  of  course  under  me  general        1818. 
rule  ;  but  there  ought  to  be  a  special  application  to  the  Court,  v^^^^^^^y 
so  that  it  may  be  previously  seen  whether  there  be  any  fit        TROUP 
ground  for  such  an  examination.     And  I  understand,  by  the    SHERWOOD 
case  of  Mill  \.  Mill,  (12   T^esey,  406.)  that  the  English  rule 
is,  that  no  examination  in  chief,  as  to  the  credit  of  witnesses, 
can  be  had  without  a  special  order,  upon  application,  and 
notice  to  the  party.     It  would  otherwise  be  deemed  an  im- 
pertinent inquiry.     I  am  not  informed  what  has  been  the 
practice  of  this  Court  on  that  point. 

Rule  accordingly. 

437 


567*  CASES  IN  CHANCERY. 

1818. 

Matter  of 

*In  the  Matter  of  HANKS,  a  Lunatic, 

On  a  petition  by  a  lunatic  to  supersede  the  commission,  and  to  I  c  restored 
to  his  estate,  on  his  recovery,  the  Court  will  either  order  it  to  be  re- 
ferred to  a  master,  to  take  proof  as  to  the  allegations  in  tho  bill,  and 
to  examine  the  lunatic,  if  he  thinks  fit,  and  to  report  the  proof,  and 
his  opinion  thereon,  or  direct  the  lunatic  himself  to  attend  in  Court, 
to  be  examined  by  the  chancellor. 

Nmwiter  12.  PETITION  by  the  lunatic,  stating  that  he  had  recovered 
his  sound  mind,  and  praying  that  he  might  be  restored  to 
his  estate. 

The  petition  was  accompanied  with  the  affidavits  of  two 
persons  in  support  of  it. 

M' Manners,  for  the  motion. 

THE  CHANCELLOR.  The  English  practice  in  such  cases 
seems  generally  to  be  for  the  lunatic  himself  to  attend  upon 
the  hearing  of  the  petition,  that  he  may  be  inspected  by  the 
chancellor.  (Ex  parte  Bumpton,  Moselcy,  78.  Ex  parte 
Ferrars,  Id.  332.)  The  Court  is,  no  doubt,  to  exercise  a 
sound  discretion  on  the  question  of  superseding  a  commission, 
and  if  serious  doubts  be  entertained  of  the  sanity  of  the 
party,  the  commission  may  be  retained  for  a  time,  though 
the  party  be  restored  to  his  personal  liberty,  as  was  done  in 
the  case  of  Ferrars ;  or  the  chancellor  may  award  an  issue 
to  ascertain  the  truth.  In  the  late  case  of  Manistre,  (of 
which  the  proceedings  are  given  in  2  Collinson  on  Lunacy,  p. 
746.,  and  which,  I  take  this  occasion  to  say,  is  a  valuable 
work,  both  for  doctrine  and  precedents,  on  this  melancholy 
subject  of  the  human  mind  in  ruins,)  there  was  an  order,  on 
the  hearing  of  the  petition  of  the  lunatic,  for  all  parties  con- 
cerned to  attend,  by  a  given  day,  and  of  which  notice  was  to 
be  forthwith  given ;  and  on  the  day  of  the  hearing,  there 
[  *  568  ]  were  twenty  affidavits  read  of  *the  committee,  and  phy- 
sicians, and  others,  and  counsel  heard  for  the  petitioner  and 
lor  the  next  of  kin. 

It  is  difficult  to  determine  when  the  mind  is  restored,  and 
the  force  of  the  testimony  must  depend  on  the  circumstances, 
whether  the  party  has  been  led  to  those  topics  upon  which 
hi$  mind  was  affected.  The  disease  is  often  very  insidious. 
I  have  frequently  been  visited  by  lunatics  against  whom  an 
inquisition  has  been  returned,  and  a  committee  appointed 
Their  object  was  always  to  complain  of  the  proceeding,  01 
438 


CASES  IN  CHANCERY.  569 

of  the  committee;  and  I  have  rarely  been  able,  on  such  cc-        1818. 
casions,  to  detect   the  mental  infirmity.     Lord  Eldon  has  ^.^-^^ ^^/ 
observed,   that  he  once,  as   counsel,  succeeded  in  getting      Matter  oi 
Lord  Thurlow  to  supersede  a  commission,  and  was  satisfied,       HANKS 
from  many  conferences  with  the  party,  that  he  was  perfectly 
rational.     But  when  he  obtained  the  order  of  supersedeas, 
and  the  party  came  to  thank  him  for  his  services,  he  dis- 
covered the  disorder  in  five  minutes,  and  regretted  all  he 
had  done. 

In  the  present  case,  the  affidavits  do  not  detail,  in  a  cir- 
cumstantial manner,  the  grounds  upon  which  the  opinions 
therein  contained  are  formed,  nor  do  they  profess  to  be  the 
affidavits  of  medical  men.  I  should  prefer,  in  this  case,  as 
the  safest  course,  to  refer  the  petition  to  a  master  to  take 
proof  as  to  the  allegations  in  the  bill,  on  giving  the  committee 
due  notice,  and  to  examine  the  lunatic,  if  he  should  deem  it 
advisable,  and  to  report  such  proof  with  his  opinion  thereon. 
If  it  should,  afterwards,  be  necessary,  the  lunatic  can  be 
brought  before  me. 

Order  accordingly. 

439 


5(39*  CASES  IN  CHANCERY. 

1818. 

MURRAV 

v.          *JVIURRAY  ANI>  MURRAY  against  TOLAND  AND  MEADE 

TOLAND.  ° 

[s.  c.  18  Johns.  24.    Followed,  2  Edw.  122;  8  Paige  600.] 

M.  and  T.,  being  owners,  in  certain  proportions,  of  goods  lying  at  Cadiz, 
M.  consigned  the  whole  to  T.,  of  P.,  for  sale,  on  their  joint  account, 
according  to  their  respective  interests ;  and  T,  put  the  goods,  with 
the  invoice  and  bill  of  lading,  into  the  hands  of  B.  and  Copartners  in 
trade  here,  to  sell.  Held,  that  B.  and  C.  could  not  retain  the  proceeds 
in  their  hands,  to  satisfy  a  demand  of  B.  against  M.  That  T.,  as  part 
owner,  and  as  factor  and  agent  of  M.,  the  other  part  owner,  might 
maintain  an  action,  in  his  own  name,  against  B.  and  C.  for  the  pro- 
ceeds ;  and  that  the  defendants  could  not  set  off  against  the  plaintiff'  the 
separate  demand  of  B.  against  M.,  especially  when  that  demand  was 
for  damages  arising  from  the  alleged  negligence  and  misconduct  of 
M.,  which  were  the  proper  subject  of  a  distinct  suit,  and  of  legal,  not 
of  equity  jurisdiction. 

That  B,  and  C.,  having  received  the  goods  for  sale,  as  agents  of  T.,  with 
full  knowledge  of  his  rights,  and  of  the  capacity  in  which  he  acted, 
and  without  giving  him  notice,  at  the  time,  of  the  claim  of  B.  against 
M.,  were  not  entitled  to  the  aid  of  this  Court  in  their  defence  of  the 
suit  of  T.  against  them  at  law. 

Where  the  supercargo  and  agent  of  a  merchant  here  delivers  goods  to 
a  merchant  abroad  for  sale,  and  the  agent  settles  with  the  merchant 
abroad,  according  to  the  account  stated  by  him,  with  full  knowledge 
of  all  the  facts,  without  any  fraud  or  imposition,  the  principal  here  is 
bound  by  the  act  of  his  agent,  and  is  concluded  from  any  further 
claims  against  the  merchant  abroad,  especially  after  having  kept  the 
account  for  several  years,  without  making  any  objections  to  it. 

October  [and  IN  February,  1813,  the  defendants,  Henry  Toland,  jun., 
I'er™;}.  Novem~  of  Philadelphia,  and  Richard  W.  Meade,  an  American  citizen, 
"esiding  at  Cadiz,  were  joint  owners  of  500  pieces  of  block 
tin,  236  pieces  belonging  to  T.,  and  264  pieces  to  M.,  then 
lying  in  Cadiz.  W.  L.  Hodge,  agent  of  T.  at  Cadiz,  and 
supercargo  of  the  ship  William,  agreed  with  M.  to  ship  the 
tin  on  board  the  William,  consigned  to  T.,  and  the  tin  was 
accordingly  shipped,  and  the  invoice  and  bill  of  lading  ex- 
pressed, that  it  was  consigned  to  T.,  of  Philadelphia,  for  the 
account  and  risk  of  M.  fy  T.  in  their  respective  proportions, 
above  stated.  The  ship  with  the  tin  arrived  at  Netv-YorJc, 
the  27th  of  March,  1813,  and  T.  sent  to  the  plaintiffs,  John 
B.  Murray  and  James  B.  Murray,  partners  in  trade  there, 
the  bill  of  lading  and  invoice  of  the  tin,  with  instructions  to 
570  ]  sell  it.  On  the  20th  of  May,  1813,  *John  B.  M.  informed 
T.  verbally,  that  M.  was  greatly  indebted  to  him,  John  B.  M., 
and  that  he  should  retain  the  proceeds  of  the  tin,  in  part  sat- 
isfaction of  his  claim ;  and  by  letters  of  the  31st  of  May, 
and  4th  of  June,  1813,  he  informed  T.  that  he  should  retain 
the  proceeds  of  the  tin,  to  protect  him  from  the  violation  of 
a  written  agreement  between  him  and  M.,  and  that  a  balance 
440 


CASES  IN  CHANCERY.  570 

of  4,409  dollars  and  38  cents  was  due  on  the  17th  of  July,        1818 
1810,  from  M.  to  him.  ^>^~^ 

Soon  after  the  verbal  notice  given  to  T.  on  the  20th  of      MURK  A  7 
May,  1813,  T.  informed  the  plaintiffs,  that  he  had  accepted      T(JIVANU 
a  bill  of  M.  on  him  for  300  dollars  ;  and  the  plaintiffs  charged, 
that  when  the  first  notice  was  given  to  T.,  he  had  not  assumed 
any  responsibilities  for  M. 

The  bill  further  stated,  that  T.  had  brought  an  action  at 
law  in  the  Supreme  Court  against  the  plaintiffs,  as  his  factors 
and  agents,  to  recover  the  proceeds  of  the  tin ;  and  the 
plaintiffs  set  forth  a  particular  statement  of  the  claim  of  John 
B.  M.  against  M.,  and  prayed  for  an  injunction  against  the 
suit  at  law,  and  for  general  relief,  &c. 

The  defendant,  in  his  answer,  stated,  that  when  the  tin 
was  shipped,  M.,  as  his  factor  and  agent,  was  possessed  of 
a  quantity  of  flour  belonging  to  T.,  and  placed  in  the  hands 
of  M.  by  H.  for  sale,  which  he  sold  for  662  dollars,  but  had 
rendered  no  account  of  sales  ;  and  that  M.  had  also  collected 
money  for  freight  belonging  to  T.,  to  the  amount  of  1,313 
dollars,  which  he  had  not  remitted  to  T.,  but  claimed  to  hold 
the  moneys  in  his  hands  belonging  to  T.,  as  a  set-off  against 
the  proceeds  of  M. 's  portion  of  the  tin.  That  T.  on  the  24th 
of  May,  1813,  paid  a  draft  of  M.  on  him,  for  300  dollars; 
anil  on  the  23d  of  June,  1813,  he  paid  a  bill  of  exchange, 
drawn  by  M.,  the  5th  of  May,  1813,  for  500  dollars,  at  10 
days'  sight.  That  these  sums  were  drawn  for  out  of  the 
expected  proceeds  of  the  tin.  The  defendant  did  not  receive 
any  notice  of  John  B.  M.'s  claim  against  M.,  or  of  his  in- 
tention to  retain  the  proceeds  of  the  tin,  until  after  the  tin 
was  in  possession  of  the  plaintiffs.  *That,  afterwards,  on  [  *  5"  1  ] 
the  20th  of  May,  1813,  John  B.  M.  informed  him  of  his 
having  a  claim  against  M.,  and  of  his  intention  to  retain  the 
proceeds  of  the  tin  ;  but  the  defendant  did  not  suppose  him 
t ,'>  be  serious  in  that  intention,  until  after  his  letter  of  the 
3 1st  of  May.  That  the  defendant  did  not  conceive  himself 
justified,  by  the  letters  from  J.  B.  M.,  in  refusing  to  accept 
the  bills  of  M.,  drawn  upon  the  faith  of  the  consignment  to 
the  defendant ;  that  the  plaintiffs  offered  the  defendant  no 
indemnity  ;  that  M.,  being  informed  of  these  claims  of  J.  B. 
M.,  wrote  to  the  defendant,  in  September,  that  if  he  allowed 
the  plaintiffs  to  rob  him  of  the  proceeds  of  the  tin  consigned 
to  the  defendant,  he  should  hold  him  responsible.  The  de- 
fendant admitted,  that  he  had  sued  the  plaintiffs  at  law,  for 
the  proceeds  of  the  whole  tin,  and  insisted  that  the  plaintiffs, 
as  his  factors,  cannot  question  his  title,  but  are  bound  to  ac- 
count to  him  for  the  proceeds ;  and  that,  at  all  events,  the 
defendant  has  a  preferable  Hen,  to  the  extent  of  his  claims 

VOL.  III.  56  441 


571  CASES  IN  CHANCERY. 

1818.       against  M.     That  the  defendant  knows  nothing  of  the  trans 
v^-x^-^x  actions  between  the  plaintiffs  and  M.,  and  that  if  M.  is  liable 
MURRAY       to  John  B.  M.  for  damages,  for  any  violation  of  contract,  il 
TO/AND       ls   an   unliquidated  claim,  which   cannot   be    legally  s(t  off 
against  the  proceeds  of  the  tin ;  and  that  if  M.  is  liable  a* 
all,  it  is  to  John  B.  M.,  individually,  and  not  to  the  plaintiffs 
The  defendant  Meade,  in  his  answer,  stated  the  particulars 
of  the  transactions  between  him  and  the  plaintiff's.     It  ap- 
peared that  the  claims  of  John  B.  M.  against  him  arose  out 
of  a  consignment  of  a  cargo,  on  board  a  vessel,  called  the 
Charleston  Packet,  which  was  under  the  care  of  Samuel  Lyle, 
who  was  on  board  of  the  ship,  and  who  consigned  it  to  A/ 
to  be  sold  for  John  B.  M. 

It  was  proved,  that  Lyle,  who  was  the  supercargo  of  the 
Charleston  Packet,  and  had  the  entire  direction  and  manage- 
ment of  it  for  John  B.  M.,  had  come  to  a  compromise  and 
f  *  572  ]  settlement  with  Meade,  relative  to  it,  on  the  28th  of  *  October, 
1808,  according  to  an  account  current,  annexed  to  the  an- 
swer of  M.,  under  which  was  the  following  receipt  by  Lylt ,>, 
dated  the  29th  of  October,  1808:  "Received  of  Richard  W. 
Meade  an  order  on  Gordon  and  Co.  for  385  casks  of  wine, 
which  remain  at  my  disposition,  for  balance  of  account  cur- 
rent rendered  on  the  28th  instant."  Lyle,  in  his  deposition, 
stated,  that  the  account  of  M.  of  the  28th  of  October,  1808, 
contained  a  number  of  unjust  charges,  which  he  specified, 
and  that  he  was  induced,  or  rather  compelled,  for  reasons 
mentioned  by  him,  to  suffer  them  to  remain  in  the  final  ac- 
count. In  the  receipt  given  by  Lyle  to  Gordon  and  Co.,  on 
the  9th  of  January,  1809,  under  the  order  of  M.,  for  the  385 
casks  of  wine,  and  23  casks,  in  addition,  he  says,  "  which 
wine  I  have  thought  prudent  to  receive,  as  part  payment  of 
a  balance  of  accounts  which  M.  ought  to  have  paid  me  in 
June  last,  reserving  to  John  B.  M.  his  claim  for  the  amount 
of  all  losses  and  damages  sustained  by  him  in  consequence 
of  my  concerns  with  R.  W.  M." 

October  i  and  2.       Harison  and  R.  Sedgwick,  for  the  plaintiffs. 

D.  B.  Ogden  and  T.  L.  Ogden,  for  the  defendants. 
November  is.        The  cause  stood  over  for  consideration  until  this  day. 

THE  CHANCELLOR.  The  bill  was  filed  to  stay  the  suit  at 
law  brought  by  the  present  defendant,  Toland,  to  recover 
the  proceeds  of  the  goods  which  he  had  committed  to  the 
plaintiffs  to  sell. 

1.  The  first  point  which  arises  for  discussion  is,  whether 
442 


CASES  IN  CHANCERY. 


the  plaintiffs  can  retain  those  proceeds,  or  any  {.art  of  them, 
against  Toland,  in  consequence  of  a  demand  which  one  of 
the  plaintiffs  advances  against  Meade,  who  had  an  interest  in 
those  goods. 

The  goods  belonged  to  Meade  and  Toland,  in  nearly  equal 
*proportions,  and  were  sent  from  Cadiz,  in  Spain,  by  Meade, 
consigned  to  Toland,  and  the  invoice  mentioned  that  they 
were  shipped  on  account  of  Meade  and  Toland,  in  the  pro- 
portions therein  stated.  When  the  goods  arrived  at  New- 
York,  the  invoice  and  bill  of  lading  were  sent  by  Toland  to 
the  plaintiffs,  with  instructions  to  sell  the  goods.  The  plain- 
tiffs state  in  their  bill,  that  the  goods  arrived  at  New-  York, 
on  the  27th  of  March,  1813,  and  that  about  that  time  Toland 
sent  them  the  invoice  and  bill  of  lading,  with  instructions  to 
sell,  and  that  on  the  20th  of  May  following,  they  informed 
Toland  that  one  of  the  plaintiffs  would  retain  the  proceeds, 
in  part  satisfaction  of  his  claim  against  Meade.  I  presume 
that  the  goods  were  then  sold ;  and  the  question  is,  whether 
a  Court  of  equity  will  aid  a  claim  advanced  under  these 
circumstances. 

It  cannot  be  denied  that  Toland  was  entitled  to  demand 
and  receive  those  proceeds,  and  to  bring  an  action  at  law  in 
his  own  name.  There  was  a  privity  of  contract  between  the 
parties.  A  factor,  according  to  the  case  of  Drinkwater  v. 
Goodwin,  (Cowper,  251.)  who  receives.,  and  is  authorized  to 
sell  goods,  may  bring  an  action  to  compel  the  buyer  to  pay, 
and  "  it  would  be  no  defence  to  the  buyer,  in  that  action,  to 
say,  that  a^  between  him  and  the  principal,  he  ought  to  have 
the  money."  The  factor  has  a  lien  on  the  price  of  the 
goods  in  the  hands  of  the  buyer,  for  the  balance  of  his 
account,  nnd  for  his  acceptances  made  upon  the  faith  of  the 
consigns  i  L 

In  this  case,  Toland  was  part  owner  of  the  goods,  and  he 
held  the  residue  as  agent  or  factor  of  Meade.  He  dealt 
with  the  plaintiffs  jointly,  as  a  commercial  house,  and  there 
was  no  privity  between  him  and  one  of  the  plaintiffs,  in 
dividually  considered.  If  there  could  be  any  set-off  allowed 
in  this  case,  it  ought  to  be  of  a  joint  demand  of  the  plain- 
tiffs, and  not  of  the  separate  demand  of  one  of  them.  The 
plaintiffs  assumed,  and  are  responsible  for  those  proceeds  in 
their  joint  capacity.  This  fact  is,  of  itself,  decisive  *against 
the  alleged  right  to  retain.  The  debt  demanded,  and  the 
debt  to  set  off,  must  be  mutual,  i.  e.  they  must  be  due  to  and 
from  the  same  persons,  in  the  same  capacity. 

But  it  does  not  appear  to  me  to  be  fit,  even  upon  more 
general  grounds,  for  this  Court  to  aid  such  a  defence ;  and 
the  plaintiffs  ought  to  be  left  to  their  defence  at  law,  if  any 

443 


1816. 


Debts  set  off 
against  each 
other  must  be 
mutual ;  that  is, 
they  must  be 
due  to,  a-tl 

[  *  574 } 

from  the  same 
persons,  in  the 
same  capacity 


574  CASES  IN  CHANCERY. 

1818.  they  have.  The  defendant  Toland  disclosed  his  rights,  and 
v^— v"-**-'  ^e  capacity  in  which  he  dealt,  when  he  sent  the  documents 
MURRAY  and  instructions  to  the  plaintiffs,  and  the  plaintiffs  accepted 
TOLAND.  °^  tne  agency  conferred  by  T.  without  notice  of  any  dor 
mant  claim  against  Meade,  and  they  dealt  with  him  as  theif 
principal.  This  claim  was  kept  concealed  for  two  months, 
before  either  of  them,  even  verbally,  made  any  pretension. 
They  accepted  of  the  trust  as  agents  of  Toland.  and  good 
faith  requires  that  they  should  fully  account  to  him,  and  to 
him  only.  It  was  for  Toland' s  principal  to  interfere,  if  he 
had  so  chosen,  to  protect  himself  against  Toland.  The  plain- 
tiffs had  no  right  to  put  Toland  aside,  against,  his  consent, 
and  to  challenge  a  controversy  with  his  principal.  This 
Court  ought  not  to  lend  its  assistance  to  a  proceeding  so  re- 
pugnant to  that  candor  which  the  parties  had  a  right  to 
require  of  each  other,  and  to  the  confidence  which  was 
reposed. 

2.  This  ground  is  quite  sufficient  to  justify  a  dismissal  of 
the  bill,  as  against  Toland.  But  if  we  go  into  the  exam- 
ination of  the  claim  set  up  against  Meadc,  there  appears  to 
be  a  decisive  objection  to  it,  arising  from  the  settlement  made 
on  the  28th  of  October,  1808,  between  Meerrfe  and  Lyle,  who 
acted  as  the  authorized  agent  of  the  plaintiff,  who  advances 
the  claim. 

There  was  an  account  current  stated  and  admitted.  Lyle 
acted  upon  a  full  knowledge  of  all  the  facts.  There  is  no 
pretence  of  any  fraud  or  imposition  practised  upon  him,  or 
that  he  had  not  a  perfect  freedom  of  action  in  discussing  and 
settling  the  account.  It  was  founded  upon  mutual  conces- 
'  *  575  ]  sions.  If  a  person  will  enter,  even  into  a  *hard  bargain, 
with  his  eyes  open,  observes  Lord  Hardwicke,  (2  Atk.  251.) 
equity  will  not  relieve  him,  unless  he  can  show  fraud,  or  some 
undue  means  used.  At  the  foot  of  this  stated  account,  Lyle. 
receives  and  gives  a  receipt  for  an  order  on  Gordon  and  Co., 
for  the  balance  of  the  account ;  and  though  he  afterwards 
gives  a  receipt  to  Gordon,  in  full  of  the  order,  as  though  it 
was  only  "  part  payment  of  the  balance  of  accounts,"  yet 
this  being  an  act  of  his  own,  long  after  the  acknowledged 
settlement,  it  cannot  have  any  effect  upon  it.  The  pretence 
of  coercion,  or  undue  influence,  exerted  over  Lyle,  is  without 
a  shadow  of  proof.  He  had  applied  to  the  judicial  tribunals 
of  Spain  for  relief;  and,  then,  without  waiting  for  any  de- 
cision, and  without  any  undue  cause,  he  "  finally  concluded," 
as  he  says,  to  receive  from  Meadc  the  balance  as  stated, 
"  as  a  measure  of  prudence,"  because  Meade  was  considered 
in  insolvent  circumstances.  There  is  no  evidence  of  such 
insolvency  existing  ;  and  it  is  most  reasonable  that  the  plain 
444 


CASES  IN  CHANCERY.  575 

tiff,  J.  B.  M.,  should  be  bound  by  the  measure  of  prudence 
adopted  by  his  agent,  especially  as  no  objection  appears  to 
have  been  made,  and  transmitted  to  Meade,  by  the  plaintiff, 
from  the  date  of  the  settlement  in  October,  1808,  to  the  time 
he  resolved  to  appropriate  the  proceeds  in  question,  in  May, 
1813.  It  has  been  often  held,  that  if  a  party  receives  a 
stated  account  from  abroad,  and  keeps  it  by  him  for  any 
length  of  time,  (one  case  says  two  years,)  without  objection, 
he  shall  be  bound  by  it.  (Willis  v.  Jernegan,  2  Atk.  251. 
Ticket  v.  Short,  -2  Fesey,  239.)  Chancery  will  not  decree 
an  account  to  be  tiken  after  such  a  lapse  of  time,  but  will  leave 
the  party  to  his  remedy  at  law. 

3.  If  this  settlement  was  not  in  the  way,  yet  the  claims  of 
one  of  the  plaintiffs  would  not  be  a  proper  subject  of  set-off, 
for  they  are  founded  upon  the  alleged  negligence  and  mis- 
conduct of  Meade,  and  these  are  matters  of  tort,  sounding  in 
unliquidated  damages.  Such  misconduct  *is  properly  to  [  *  576 
be  inquired  into,  in  a  distinct  suit  for  that  purpose ;  and  so  it 
was  decided  in  Winchester  v.  Hackley.  (2  Cranch,  342.) 
It  is,  also,  a  subject  of  legal,  and  not  of  equity  jurisdiction. 

Considerable  stress  was  laid,  by  the  counsel  for  the  plain- 
tiffs, upon  what  was  said  by  Lord  Hardwicke  in  Shish  v. 
Foster.  (1  Vesey,  86.)  The  doctrine,  in  that  case,  was  con- 
sidered as  being  applicable  to  this,  because  the  plaintiffs  might 
have  difficulty  in  obtaining  satisfaction  from  Meade,  who  re- 
sides in  Spain,  if  the  proceeds  belonging  to  him,  in  this  case, 
were  taken  out  of  their  hands. 

But  that  case  is  not  analogous.  The  plaintiff  there  had 
filed  a  bill  against  his  former  guardian,  to  set  aside  a  stated 
account,  on  the  ground  of  fraud ;  and  the  defendant  filed  a 
cross-bill  for  the  specific  performance  of  an  agreement  for 
an  estate  in  possession  of  the  plaintiff.  The  chancellor  sus- 
pended the  decree  for  a  specific  performance,  until  the  ac- 
count was  taken,  as  the  plaintiff  would  have  been  in  danger  of 
losing  his  demand,  if  the  estate  had  been  taken  from  him,  for 
the  defendant  had  frequently  absconded.  The  cross-bill,  in 
that  case,  was  for  equitable  aid  ;  and  under  the  circumstances 
of  the  case,  the  Court  applied  the  rule,  that  he  who  would 
have  equity  must  do  it.  Whether  the  rule  was  properly  ap- 
plied in  that  case,  is  at  present  immaterial,  for  it  is  a  sufficient 
objection  to  the  application  of  the  case,  that  Mcade  is  not 
now  a  plaintiff  before  this  Court  asking  for  relief. 

But  Lord  Pla^dwicke,  in  delivering  his  opinion,  cited  the 
case  of  "  Jacobson  v.  Hans  Towns,  or  merchants  of  Almaign" 
From  the  imperfect  note  which  he  gives  of  the  case,  it  would 
appear,  that  Jacobson  had  been  a  lessee  of  an  estate  belong 
ing  to  the  defendants,  and  the  lease  having  expired,  an  eject- 

445 


576  CASES  IN  CHANCERY 

1818.       merit  had  been  brought  against  him  at  law  to  recover  posses- 
^**~^>~^/  sion.     He  filed  a  bill  in  chancery,  on  the  ground  that  he  was 
MURRAY       a  creditor  in  a  long  account,  and  that  the  estate  ought  not 
TOL^AND.       to-be  taken  from  *him,  until  he  had  received  satisfaction  of 
r  #  577  -j       his  demand.     And  though  he  had  no  real  lien  on  the  estate, 
an  injunction  was  granted  by  Lord  Macclesfidd ,  and  con- 
tinued by  Lord  King,  because  of  '•'  the  difficulty  of  his  getting 
satisfaction,  if  the  estate  was  taken  from  him,  as  they  (the 
defendants)  were  a  corporation  residing  beyond  sea." 

This  case  requires  every  kind  of  explanation  ;  and  I  am  not 
willing  to  consider  it  as  an  authority,  as  it  now  stands.  It  is 
not  to  be  found  elsewhere ;  it  is  contrary  to  the  principles  of 
the  Court,  which  measures  out  the  same  justice  to  foreigners 
and  citizens ;  and  it  is  contrary  to  the  established  doctrine  in 
respect  to  set-offs.  It  is  altogether  new,  that  an  unsettled 
account  can  be  set  off  against  an  ejectment  to  recover  pos- 
session of  land,  to  which  the  lessor,  in  the  ejectment,  has  an 
undoubted  title.  The  only  case  in  which  an  ejectment  has 
been  stayed,  until  an  account  was  taken,  is  the  case  of  an 
ejectment  for  non-payment  of  rent,  and  where  the  dealings 
between  the  landlord  and  tenant  were  too  complicated  for 
law.  The  interference  of  the  Court,  in  that  special  case,  was 
requisite  to  determine  whether  there  was  any  foundation  for 
the  ejectment.  (  O'  Connor  v.  Spaight,  1  Sch.  fy  Lef.  305.) 
But  to  enjoin  a  party  residing  out  of  the  jurisdiction  of  the 
Court,  from  covering  possession  of  land  to  which  he  has  a 
title,  because  the  tenant  in  possession  has  some  personal  de- 
mand against  him  totally  unconnected  with  a  right  to  the 
land,  would  be  extraordinary.  The  ground  taken  in  the  case 
stated  was,  that  it  would  be  inconvenient  or  difficult  for  the 
tenant  to  obtain  his  demand  from  the  party  residing  abroad. 
Is  the  Court,  then,  to  hold  the  land,  by  way  of  mortgage,  for 
an  uncertain  demand  sounding  in  contract  or  tort,  when  the 
parties  have  created  no  such  lien  ?  I  cannot  venture  to  act 
upon  such  a  case  without  more  authority.  If  that  was  the 
law  or  usage  of  the  Court,  we  should  have  had  better  evidence 
of  it  than  this  obscure  and  solitary  allusion  to  the  case  of 
'  *  578]  Jacobson  v.  Hans  *Towns.  Such  a  principle  would  check 
all  suits  at  law.  and  extend  the  doctrine  of  set-off  to  every 
possible  case,  if  it  so  happen  that  the  plaintiff'  at  law  was 
not  within  the  jurisdiction  of  the  Court.  The  inconveni- 
ence of  following  a  party  to  his  place  of  residence  abroad, 
does  not  appear  to  me  to  be,  of  itself,  a  sufficient  ground  for 
departing  from  the  settled  doctrines  of  the  Court.  The  Court 
cannot  be  governed  by  the  mere  question  of  comparative 
convenience.  What  would  be  proper,  if  the  party  resided 
in  a  country  where  there  was  no  regular  law  or  justice,  01 
446 


CASES  IN  CHANCERY  578 

where  he  was  absolutely  inaccessible,  is  not  a  point  before        1818 
me.     A  residence  at  Cadiz  is,  surely,  not  such  a  case ;  nor  v^«»-v— ^-/ 
is  Spain,  with  all  her  infirmity,  to  be  put  out  of  the  pale  of       MJRRAT 
civilized  nations. 

I  shall  not  enter  into  the  discussion  of  the  charge  of  mis- 
conduct in  Meade,  and  which  occupies  so  large  a  part  of  the 
pleadings  and  proofs  in  this  case.  Either  of  the  three  grounds 
I  have  taken  are  sufficient  to  destroy  the  equity  of  the  bill  as 
against  Toland,  and  the  two  last  of  them,  as  against  Meade. 

The  injunction  must,  accordingly,  be  dissolved,  and  the 
bill  dismissed,  with  costs. 

Decree  accordingly. 

447 


578  CASES  IN  CHANCERY. 

1818. 

RAYNER         _ 

v.          KAYNER,  Administrator,   fcc.  of  SEARING,  and  others, 

PKARSALL.  -M-J  ,        . 

against  TEARSALL  and  others. 

An  assignee  of  an  executor,  or  of  the  administrator  of  an  executor,  cannoi 
be  called  to  an  account  by  the  legatees,  where  there  is  no  fraud  or 
collusion,  even  though  the  assets  could  be  traced  and  identified. 

Where  an  executor  put  bonds  and  notes,  due  to  the  testator,  into  the 
hands  of  an  attorney  to  collect,  and  after  the  death  of  the  executor, 
the  attorney  collected  the  money  and  applied  it  to  his  own  use,  and 
*  579  ]  became  insolvent :  Held,  that  *the  estate  of  the  executor  was  not 

chargeable  with  the  loss,  especially  after  a  lapse  of  more  than 
six  years. 

Where  the  administrator  of  an  executor,  in  his  answer  to  a  bill  filed  by 
the  representatives  and  legatees  of  the  testator,  for  an  account,  &c., 
sets  forth  an  account,  and  avers  that  he  had  fully  administered,  &c., 
and  had  distributed  the  surplus,  being  a  trifling  sum,  the  Court  re- 
fused to  order  a  reference  to  a  master  for  a  further  account,  especially 
after  a  lapse  of  twelve  years. 

September  3d,       JOHN  SEARING  made  his  will  on  the  29th  of  March, 
J5  r  1795,  and  appointed  William  Pearsatt  and  three  other  persons 

his  executors.     The  testator  died  in  October,  1797,  and  the 
will  was  proved  by  Pearsatt,  who  qualified  as  executor,  the 
other  persons  having  refused    to  act.     After  giving  several 
specific   and    pecuniary   legacies,    the    testator  directed   his 
estate  to  be  divided  into^/bur  parts,  and  gave  one  fourth  of 
the  same  to  the  children  of  Joseph  Baldwin,  one  fourth  to 
fVittet  Rayner,  one  fourth  to  the  children  of  George    Van 
Kleeck,  and  one  fourth  to  the  children  of  Elizabeth   Hicks. 
WiUet  Rayner,  the  children  of  George  Van  Kleeck,  deceased, 
and  the  children  of  Elizabeth  Hiclts,  residuary  legatees,  men- 
tioned in  the  will,  are  the  plaintiffs  in  the  suit.     The  bill 
charged  that  the  executor.  P.,  collected  part  of  the  debts, 
and  sold  part  of  the  personal  estate,  which  amounted  to  more 
than  the  pecuniary  legacies,  and  sold  part  of  the  real  estate ; 
that  the  testator  left  a  large  real  and  personal  estate,  which 
did,  or  might,  if  not  for  his  negligence,  have  come  to  the 
hands  of  the  executor,  a  schedule  of  which    was  annexed. 
That  the  executor  died  intestate,  in   1803,  leaving  a  hrge 
estate,  without    having  paid  the    legacies,  &c.,  except  the 
bequests  to  the  widow.     That  Mary  Pearsall,  the  daughter 
of  the  executor,  administered  on  his  estate,  and  possessed 
herself  of  a  large  part  of  the  real  and  personal  estate  of  the 
testator,  and  of  his  books  of  account,  &c.,  and  afterwards 
married  John   Woolley,  (defendant,)  and  died  in  February, 
1816,  intestate ;  that   W.  possessed  himself  of  the  -eal  and 
personal  estate  of  his  wife,  and  of  a  great  proportion  of  th« 
448 


CASES  IN  CHANCERY.  *580 

estate  of  S.,  the  testator,  and  has  not  administered  on  his  IS  is. 
^wife's  estate,  nor  on  the  estate  of  her  father,  W.  P.,  nor  had 
he  or  his  wife  paid  the  legatees  under  the  will  of  S.,  &c. 
That  in  July,  1808,  the  defendant  Lavinia  Pearsall,  widow  PJ,AI<AIL 
of  IV.  P.,  deceased,  tooK.  out  letters  of  administration  de 
bonis  non,  &c.,  of  the  executor  of  S.,  and  possessed  herself 
of  the  real  and  personal  estate,  or  the  proceeds  thereof,  of 
S.,  and  of  his  books  of  account,  &c.,  and  also  of  the  personal 
estate  of  W.  P.,  the  executor,  but  had  not  accounted,  or 
paid  to  the  legatees,  their  legacies,  &c.,  but  had  put  the 
estate,  books,  &c.,  into  the  hands  of  the  defendant  Charles 
Rapelyea,  who  had  married  her  daughter  Catharine,  who 
held  the  same,  without  accounting  to  the  plaintiffs  or  the 
other  legatees  of  S.  That  the  surviving  executors  of  the 
testator,  $.,  having  renounced,  and  his  widow  having  also 
renounced  her  right  to  administer,  administration,  with  the 
will  annexed,  was  granted  to  the  plaintiff,  William  Rayner, 
one  of  the  residuary  legatees.  That  the  children  of  Joseph 
Baldwin,  who  are  the  other  residuary  legatees,  with  their 
father,  reside  out  of  the  state,  and  it  was  unknown  whether 
they  were  living  or  dead.  Prayer,  that  the  defendants  may 
account,  &c.,  and  be  decreed  to  deliver  or  pay  to  the  plain- 
tiffs the  real  and  personal  estate  of  the  testator,  S.,  or  the 
proceeds  thereof,  remaining  unadministered  by  W.  P.  &c., 
y.nd  to  deliver  the  books  of  account,  deeds,  &c.,  relating  to 
.he  estate  of  S.,  to  the  plaintiff  Rayner,  &c.,  and  for  general 
Belief. 

Wiooflcy,  in  his  answer,  stated,  that  he  delivered  up  to  Lavinia 
P.  all  the  assets  which  his  wife  left,  as  administratrix  of  W. 
P.,  except  one  third  of  the  furniture,  which  Lavinia,  as  ad- 
ministratrix, delivered  to  him,  and  personal  property  of  W, 
P.  to  the  value  of  32  dollars  and  71  cents,  and  that  all  that 
property,  now  in  his  hands,  does  not  exceed  the  value  of 
1 60  dollars ;  and  he  denied  that  he  ever  had  any  other  prop- 
erty of  W.  P.,  or  any  part  of  the  estate  of  S. 

The  defendant  Lavinia  P.,  in  her  answer,  admitted  that  [  *5S1  ] 
IV.  P.  was  the  acting  executor  of  S.,  and  sold  the  real  and 
personal  estate  of  the  testator,  and  collected  some  of  the 
debts ;  that  in  1799  he  sold  a  farm  and  meadow,  which  was 
all  the  real  estate,  for  3,000  dollars ;  that  the  personal  estate, 
except  what  was  bequeathed,  was  sold  at  auction,  in  October, 
1797,  and  November,  1798,  and  produced  735  dollars  and 
98  cents ;  and  that  the  plaintiff  R.  purchased  to  the  amount 
of  118  dollars  and  12  cents,  which  he  has  not  paid.  That 
the  schedule  referred  to  in  the  bill  was  not  correct;  and  the 
whole  of  the  property  specified  did  not  come  to  the  hands 
of  the  executor.  That  the  bonds  and  notes  there  mentioned 

VOL.  III.  57  449 


581  CASES  IN  CHANCERY. 

1818.  were,  in  1799  and  1802,  put  into  the  hands  of  an  attorney 
v^-x^-v^x  A..  Skinner,  for  collection,  and  no  part  of  them  has  been 
RAYNER  received  by  the  executor,  or  by  his  administratrix,  M.  P.,  or 
PEARSALL  ^  *ne  defendant.  That  the  money  due  on  the  bonds  and 
notes  was,  afterwards,  paid  to  Joseph  Winter,  an  attorney ; 
and  the  plaintiff,  as  administrator  of  S.,  sued  Winter,  and 
recovered  a  verdict,  in  1813,  for  2,302  dollars  and  51  cents; 
and  that  the  plaintiff  ought  to  look  to  Winter,  or  the  persons 
who  paid  him  the  money,  and  not  the  estate  of  W.  P. 
That  a  note  of  W.  H.  for  60  pounds,  7  shillings,  and  8  pence, 
and  a  note  of  S.  L.  for  12  pounds,  which  could  not  be  col- 
lected, are  now  in  the  hands  of  the  defendant.  Two  other 
notes  were  assigned  to  the  widow  of  the  testator  as  part  of 
her  legacy.  That  according  to  the  statement  made  to  the 
defendant  by  A.  Skinner,  the  executor,  W.  P.,  recovered 
50  pounds  in  1797,  on  R.  Morrel's  bond;  and  in  1798,  70 
pounds  for  rent.  That  the  defendant  knows  no  more  of  the 
assets  of  the  testator,  and  denies  all  negligence  in  the  ex 
ecutor,  who  died  the  20th  of  May,  1604,  intestate.  That 
neither  the  executor  nor  his  daughter,  after  his  death,  ever 
took  possession  of  the  assets  of  the  testator.  That  she,  as 
administratrix  of  W.  P.,  collected  some  moneys  due  to  him, 
and  paid  some  debt,  leaving  a  balance  in  her  hands  of  81 
[  *  582  ]  *dollars  and  8  cents,  besides  some  furniture,  of  the  value  of 
140  dollars ;  that  she  left  furniture  to  the  value  of  70  dollars, 
with  W.,  as  the  proportion  of  his  wife,  the  daughter  of  W.  P. 
That  after  deducting  25  dollars  for  her  services,  the  defend- 
ant paid  the  residue  of  the  81  dollars  and  8  cents,  which 
were  all  the  remaining  assets  of  W.  P.,  to  the  defendant  jR., 
who  had  married  the  only  surviving  child,  and  to  whom,  also, 
she  delivered  the  furniture,  valued  at  140  dollars,  half  of 
which  had  since  been  returned  to  her.  That,  as  appeared 
from  receipts  in  her  possession,  W.  P.,  as  executor,  had  paid 
3,265  dollars  and  38  cents,  of  which  a  schedule  was  annexed ; 
and  had  retained  37  dollars  and  59  cents,  for  his  own  debt, 
and  214  dollars,  72  cents,  for  moneys  expended,  as  executor, 
also,  250  dollars  for  a  legacy  to  him  and  his  brother,  and 
250  dollars  given  to  him  conditionally,  the  condition  having 
happened.  The  defendant  denied  that  the  plaintiff  had  ever 
demanded  an  account  of  the  administration  of  Searing's 
estatf ;  and  she  insisted,  that  considering  the  lapse  of  time 
since  the  death  of  S.,  W.  P.  and  M.  P.,  she  was  not  bound 
to  render  any  further  account. 

The  defendant  R.  admitted  the  receipt  of  56  dollars  and 
8  cents,  in  money,  and  the  furniture  which  he  received  of 
Lavinia  P.,  in  part  of  the  estate  of  W.  P.  in  right  of  his 
wife,  the  daughter  of  W.  P. ;  and  he  denied  all  knowledge 
450 


CASES  IN  CHANCERY. 


532 


of  the  estate  of  the  testator  S.,  and  that  he  ever  received 
any  part  of  it,  or  of  the  proceeds,  or  was  ever  requested  to 
give  any  account  respecting  it. 

T.  A.  Emmet,  for  the  plaintiffs. 

Wells,  and  J.  Riker,  for  the  defendants. 

THE  CHANCELLOR.  There  does  not  appear  to  exist  even 
the  shadow  of  a  right  of  action  against  the  defendant 
Rapelyca.  He  married,  in  1814,  a  daughter  of  Pearsall, 
*the  executor,  who  had  been  dead  ten  years,  and  he  received 
from  his  mother-in-law  a  few  dollars  in  money,  and  some 
trifling  furniture  belonging  to  the  estate  of  Pearsall,  and  of 
which  estate  she  was  only  an  administratrix  of  assets  unad- 
ministered  by  the  former  administrator.  There  is  no  real 
pretension  of  any  collusion  between  him  and  any  person  rep- 
resenting the  estate  or  assets  of  Searing.  The  complainant, 
Rayncr,  was  the  personal  representative  of  Searing,  when  the 
defendant  R.  married  into  the  family  of  Pearsall.  The 
defendant  R.  did  not  receive  the  furniture  and  cash  of 
Lavinia  Pearsall  as  being  part  of  the  estate  of  Searing. 
There  is  no  proof  of  such  an  allegation,  or  that  he  had  any 
reason  to  suspect  any  connection  between  what  he  received, 
and  the  assets  of  the  estate  of  Searing.  There  is  no  such 
identity  traced,  or  pretended,  in  the  property  he  received. 
The  defendant  R.  was,  therefore,  brought  into  Court  without 
any  reasonable  cause.  It  would  be  most  inconvenient,  if  not 
unjust,  to  pursue  assets  in  this  way,  through  successive  hands, 
or  a  sequel  of  transfers,  when  no  fraud  or  collusion  exists, 
even  if  the  assets  could  be  traced  and  identified.  There  must 
be  collusion  to  make  the  assignee  of  an  executor,  and,  more 
especially,  the  assignee  of  an  administrator  of  the  executor, 
liable  to  the  legatees  of  the  testator.  This  is  the  principle 
to  be  found  in  the  books.  (Newland  v.  Champion,  1  Vesey, 
106.  Lord  HardwicJce,  in  Simpson  v.  Vaughan,  2  Aik.  33, 
and  2  Vesey,  469.) 

The  bill  as  to  the  defendant  Rapelyea  must,  therefore,  be 
dismissed,  with  costs. 

We  come  next  to  consider  the  case  of  Lavinia  Pearsall, 
the  administrator  de  bonis  non  of  Pearsall,  the  executor  of 
Searing ;  and  the  principal  question  in  the  case  is,  how  far 
Pearsall  was  personally  responsible  at  his  death. 

Wm.  Pearsall  had  been  the  acting  executor  of  Searing, 
from  October,  1797,  to  May,  1804,  when  he  died,  and  it  is 
*not  until  May,  1816,  or  12  years  after  his  death,  that  this 
suit  is  brought  against  his  personal  representative,  and  who 

451 


1818. 
*~v~+* 

RAYNET. 

v. 

FEARSALL 
Septeraber  30. 


[  *  583  1 


[*  584 


584  CASES  IN  CHANCERY. 

1818.       niay  be  considered  as  a  representative  in  the  second  degree. 

V^—N/-»»^X  Every  intendment  ought  to  be  made  in  favor  of  the  executor 
RAYNER       who  has  been  so  long  dead,  and  when  his  immediate  admin- 
PEARSALL      istrator  has  been  dead  for  upwards  of  ten  years  before  the 
filing  of  the  bill. 

A  principal  matter  in  contest  is  respecting  certain  bonds 
and  notes  which  Pearsall,  the  executor,  in  1799,  put  into  the 
hands  of  Skinner,  an  attorney,  for  collection.  The  attorney 
says,  that  suits  were  brought  upon  these  bonds  and  notes,  and 
he  can  give  no  further  account  of  them,  except,  that  some 
time  after  the  death  of  Pearsall,  he  delivered  most  of  them 
over  to  Winter,  another  attorney.  They  were  collected,  or 
the  money  received  by  Winter,  to  the  amount  of  1,700  dol- 
lars, who  appropriated  it  to  his  own  use,  and  became  insol- 
vent. The  present  plaintiff,  Rayner,  has  sued  Winter  for  the 
moneys  so  collected,  and  obtained  a  ve'/dict  against  him ; 
and  he  now  seeks  to  charge  the  estate  of  Pearsall  with  that 
loss,  on  the  ground  of  negligence  in  Pearsall.  But  the  facts 
and  circumstances  of  the  case  do  not  appear  to  afford  any 
sufficient  reason  for  charging  the  estate  of  Pearsall  with  the 
loss  of  the  money  so  recovered  and  appropriated  by  the 
attorney.  There  was  no  insolvency  of  the  original  debtors. 
The  debts  were  secure  at  the  death  of  Pearsall.  The  debtors 
were  then  competent  to  pay,  and  they  did,  afterwards,  pay 
to  the  attorney.  The  loss  arises  from  the  act  of  the  attorney, 
long  after  the  death  of  the  executor,  and  the  estate  of  the 
executor  ought  not,  surely,  to  be  charged  for  such  subsequent 
defalcations.  It  is  only  responsible  for  plain  and  strong  acts 
of  negligence  or  misconduct  imputable  to  the  executor  him- 
self. There  does  not  appear  to  have  been  any  pressing 
necessity  for  the  immediate  collection  of  the  debts.  The 
executor  acted  with  reasonable  and  ordinary  discretion  and 

[  *  535  ]  care.  He  left  the  debts  secure,  and  it  was  *not  until  six 
years  after  his  death,  that  the  moneys  were  received  by  an 
attorney,  who  abused  his  trust.  The  plaintiff  Rayner  may 
charge  the  loss  more  properly  to  his  own  negligence,  in  nol 
taking  out  letters  of  administration  upon  the  estate  of  Searing 
until  seven  years  after  the  death  of  Pearsall.  He  might  at 
any  time  have  compelled  the  surviving  executors  of  Searing 
to  act,  or  to  renounce. 

If  the  debts  collected  and  wasted  by  Winter,  be  put  out 
of  the  case,  it  is  very  evident,  that  PearsaWs  estate  has 
nothing  for  which  it  ought  justly  to  be  accountable  to  the 
plaintiffs,  provided  the  list  of  payments  annexed  to  the  an- 
swer of  Lavinia  Pearsall  be  correct.  She  avers,  in  her 
answer,  that  they  are  all  supported  by  "  receipts  taken  in  a 
book,  and  on  small  detached  pieces  of  paper,  now  remaining 
452 


CASES  IN  CHANCERY.  5SS 

in  her  possession."     This,  being  matter  set  up  in  defence,  or        1818. 
by  way  of  avoidance,  must  be  proved ;  yet,  I  observe,  that  ^^-x^-^x 
in  the  statement  by  the  plaintiff's  counsel  of  the  balance  he       RAYNER 
claims,  this  schedule  of  payments  by  Pearsall,  the  executor,     pEARsALL 
is  assumed  to  be  correct.     If  it  be  so,  there  is  an  end  to 
the  claim,  supposing  PearsaWs  estate   not  to  be  chargeable 
with  the  moneys  collected  and  misapplied  by  Winter. 

The  case,  at  last,  resolves  itself  into  this  point,  whether  it 
be  necessary  or  discreet  to  subject  the  defendant  Lavinia  P. 
tc  the  trouble  and  expense  of  accounting,  by  proving  all  those 
receipts  taken  by  the  executor,  considering  the  obscurity  and 
difficulty  which  the  lapse  of  time  must  have  thrown  over  the 
transactions.  The  perplexity  and  hardship  of  accounting  is 
greatly  increased  in  the  case  of  an  administrator  de  bonis  non 
of  an  executor  of  the  assets  sought  to  be  recovered.  There 
is  very  good  reason  to  believe,  from  an  attentive  examination 
of  the  pleadings  and  proofs,  that  no  bahmce  could  be  found 
due  from  the  estate  of  Pearsall,  even  if  an  account  was  to  be 
decreed.  And  if  that  should  happen  to  be  the  case,  there 
is  another  serious  difficulty  in  the  way.  Lavinia  Pearsall 
avers,  that  *she  has  duly  administered  the  estate  of  PearsaU,  [  *  586  ] 
left  unadministered  by  the  prior  administrator,  and  that  she 
had  distributed  the  small  surplus  of  assets,  after  payment  of 
the  debts,  which  surplus  would  hardly  pay  the  expense  of  the 
reference.  It  was  only  81  dollars,  exclusive  of  some  furni- 
ture distributed  among  the  representatives  of  Pearsall. 

The  plaintiff  Rayner,  who  administered  upon  the  estate  of 
Searing  in  1811,  waited  five  years,  and  suffered  this  distri- 
bution of  the  estate  of  PearsaU  to  be  made,  before  he  filed 
his  bill,  and  he  now  calls  upon  Lavinia  P.  to  account  for  the 
administration  of  Pearsall,  as  well  as  of  her  own,  twelve 
years  after  his  death. 

In  Ray  v.  Bogart,  (2  Johns.  Cas.  432.)  the  Court  of  Errors 
confirmed  a  decree  of  this  Court,  dismissing  a  bill  for  an 
account,  by  reason  of  delay  and  lapse  of  time,  and  the  death 
of  parties,  and  the  probable  loss  of  papers,  though  the  real 
laches  in  that  case  was  only  for  eleven  years.  The  case  of 
Sturt  v.  Mellish,  (2  Atk.  610.)  is  a  strong  one  to  show  the 
unwillingness  of  the  Court  to  decree  an  account,  when  the 
transactions  have  become  obscure  and  entangled  by  delay 
and  time.  There  is  no  certain  and  definite  rule  on  the  sub- 
ject. Each  case  must  depend  upon  the  exercise  of  a  sound 
discretion  arising  out  of  the  circumstances.  My  conclusion 
is,  that  in  this  case  it  would  be  oppressive,  and  without  any 
beneficial  result  to  either  party,  to  order  an  account  to  be 
taken  ;  I  shall,  accordingly,  dismiss  the  bill,  as  to  the  defend- 
ant Lavinia  P..  without  costs  ^  ,.  , 

Decree  accordingly. 

453 


587*  CASES  IN  CHANCERY. 

1818. 

OONSEQ.UA 

FANNING.  *CoN,'3EQUA  against  FANNING  and  Others. 

[Referred  to,  2  Sandf.  Ch.  127.    Reversed,  17  Johns.  51*.] 

On  a  re- hearing,  the  cause  is  open  to  the  party  who  petitions  for  the  re- 
hearing, only  as  to  those  parts  of  the  decreefcomplained  of  in  the  pe- 
tition ;  but  as  to  the  other  party,  the  cause  is  open  as  to  the  whole 
matter. 

An  order  of  reference,  for  account,  before  a  master,  cannot  be  more  ex- 
tensive, than  the  allegations  and  proofs  of  the  parties. 

Where  the  charges  in  the  bill  are  specific,  setting  forth  the  items  of  the 
account,  with  their  dates,  on  an  order  of  reference  for  an  account,  the 
inquiry  is  not  open  beyond  the  special  matters  charged  ;  although  the 
bill  may  contain  a  general  charge  at  the  conclusion,  and  a  prayer  for 
"  a  full  account  concerning  the  premises." 

In  all  questions  arising  between  the  subjects  of  different  states,  each  is 
to  be  considered  as  a  party  to  the  laws  and  authoritative  acts  of  his 
own  government. 

If  a  merchant  abroad  sends  goods  to  a  merchant  here,  by  his  order,  or 
by  that  of  his  agent,  which  are  received  with  the  invoice,  and  accepted 
without  any  objection  at  the  time,  he  cannot,  afterwards,  object  that 
the  articles  were  overcharged  in  price. 

Where  a  consignee  of  goods  sells  some  of  them  on  credit,  and  settles 
with  his  consignor,  and  pays  him  the  full  amount,  he  cannot,  after- 
wards, claim  to  be  reimbursed  for  any  part,  on  the  ground  of  a  bad 
debt  made  in  the  sale ;  there  being  no-  fraud  or  mistake  in  the 
settlement. 

Unsettled  accounts  do  not  bear  interest. 

Where  a  balance  of  an  account  is  paid  without  any  charge  of  interest,  it 
cannot,  afterwards,  be  demanded. 

Interest  is  payable  according  to  the  laws  of  the  country  where  the  debt 
is  contracted  and  to  be  paid. 

Where  a  Chinese  merchant  consigns  goods  to  a  merchant  in  New-York, 
for  sale,  which  are  delivered  at  Canton,  to  the  agent  of  the  JV*eit>-  York 
merchant,  who  neglects  to  remit  the  proceeds  to  the  consignor,  the 
latter  is  entitled  to  interest  on  the  amount  according  to  the  law  and 
custom  of  China,  being  twelve  per  cent. 


^  PETITION  for  a  re-hearing.  The  bill  stated,  that  the 
wM*er26.  '"  plaintiff,  a  native  merchant  of  Canton,  in  China,  on  the  22d 
of  December,  1807,  shipped  on  board  the  John  and  James,  at 
Canton,  a  cargo  of  teas,  valued  at  19,837  dollars  and  77 
cents,  and  consigned  the  same  to  the  defendants.  Edmund 
Fanning,  Henry  Fanning,  and  Willet  Coles,  being  partners 
in  trade,  owners  of  vessels,  and  factors  and  commission  mer- 
chants, to  sell  for  the  plaintiff,  and  which  were  received  by 
the  defendants,  as  his  factors.  That,  on  the  24th  of  De- 
[  *  588  ]  cember,  1807,  the  plaintiff  shipped  on  board  the  *Hope  and 
Atahuatya,  teas  and  nankeens,  to  the  value  of  29,135  dollars 
and  63  cents,  and  consigned  the  same  to  the  defendants,  for 
sale,  and  who  received  the  same  as  his  factors.  That  the 
defendants,  by  their  authorized  agent,  Obed  Chase,  on  the 
454 


CASES  IN  CHANCERY.  588 

19th  of  January,  1811,  gave  the  plaintiff  a  promissory  note,  1818. 
dated  at  Canton,  for  35,717  dollars  and  50  cents,  payable 
sixteen  months  after  date,  with  interest  at  twelve  per  cent., 
which  is  the  lawful  and  customary  rate  of  interest  at  Canton, 
which  note  is  still  unpaid,  and  was  given  for  the  goods  sold 
and  delivered  to  the  defendants.  That,  in  December,  1809, 
John  Smith  Crary  and  William  E.  Nexs-en,  as  lawful  attorneys 
and  agents  of  the  defendants,  gave,  at  Canton,  a  promissory 
note  to  the  plaintiff,  for  39,690  dollars  and  63  cents,  payable 
fifteen  months  after  date,  with  interest,  after  the  same  should 
become  due,  at  twelve  per  cent. ;  which  note  was  unpaid, 
and  seven  months'  interest  due  thereon,  when  the  said  Crary, 
as  agent  of  the  defendants,  gave  the  plaintiff  a  note  for  the 
interest  then  due,  being  2,910  dollars  and  64  cents,  payable 
in  twelve  months,  with  interest  at  twelve  per  cent.,  which 
note  is  wholly  due  and  unpaid.  That,  on  the  25th  of  No- 
vember, 1810,  the  plaintiff  snipped  on  board  the  Chinese,  teas 
and  cassia,  to  the  value  of  64,828  dollars  and  65  cents, 
consigned  to  the  defendants,  to  be  sold,  and  the  proceeds 
remitted  to  the  plaintiff,  and  which  goods  were  received  by 
the  defendants,  as  the  factors  of  the  plaintiff,  and  sold.  That, 
on  the  29th  of  November,  1810,  the  plaintiff  shipped  on 
board  the  Hope,  teas  and  nankeens,  to  the  value  of  6,370 
dollars  and  21  cents,  consigned  to  the  defendants  to  sell, 
and  remit  the  proceeds,  and  which  were  received  and  sold 
by  the  defendants.  That  by  an  agreement  between  the 
plaintiff  and  the  defendants,  in  relation  to  their  receiving 
and  selling  the  goods,  so  consigned  to  them  as  factors,  they 
were  to  sell  the  same  with  all  reasonable  expedition,  and  for 
the  best  prices,  and  for  a  reasonable  reward  to  be  retained, 
and  to  remit  the  proceeds,  *in  specie,  to  Canton ;  and  for 
any  unreasonable  delay  the  defendants  were  to  pay  twelve 
per  cent,  interest,  from  the  time  such  sales  and  remittances 
could  reasonably  have  been  made,  that  being  the  rate  of  in- 
terest where  the  plaintiff  resided,  and  where  the  contract  was 
to  be  fulfilled  by  the  remittances.  The  plaintiff  charged, 
that  the  defendants  received  all  the  goods  so  shipped,  and 
sold  them,  and  received  the  proceeds,  and  have  retained,  or 
wasted  them,  or  lost  part  by  their  negligence,  and  have 
refused  to  render  an  account  thereof,  and  remit  the  proceeds : 
That  it  was  the  agreement,  or  course  of  dealing,  between 
the  plaintiff  and  the  defendants,  that  for  all  moneys  due  to 
him  from  them,  they  should  pay  to  him  twelve  per  cent, 
interest  from  the  time  of  their  default.  That,  on  the  6th  of 
February,  1806,  Acors  Sheffield,  at  Canton,  gave  the  plain- 
tiff a  note  for  4,080  dollars  and  81  cents,  payable  in  fifteen 
months,  with  interest,  afterwards,  at  twelve  per  cent. ;  and 

455 


639  CASES  IN  CHANCERY. 

1818.       which  note  not  being  paid,  the  plaintiff,  afterwards,  on  the 
v^-\^«^x  12th  of  November,  1807,  delivered  it  to  the  defendant  E.  F. 
CONSEQUA     for  collection,  and  to  account  to  the  plaintiff  for  the  same ; 
FANNING.      tnat  •&"  &•  received  the  note,  in  behalf  of  the  defendants,  to 
collect,  and  has  never  accounted  to  the  plaintiff  for  it,  and 
they  have  either  collected  the  money,  or  lost  it  by  their  gross 
negligence,  and  have  refused  to  account  for  it,  with  the  in- 
terest.    That  the  defendants,  between  1805  and  this  time, 
became  indebted  to  the  plaintiff,  in  various  other  large  sums 
of  money,  amounting  to  160,000  dollars,  for  teas  and  other 
goods,  sold  and  delivered  to  them  by  the  plaintiff;  and  for 
teas  and  other  goods,  consigned,  &c.  &c.     Prayer,  that  the 
defendants  be  decreed  to  come  to  a  full  account  with  the 
plaintiff,  concerning  the  premises,  and  to  pay  to  him  what 
shall  be  found  due,  &c. 

The  defendants,  in  their  answer,  denied  that-  they  were,  at 
the  times  mentioned  in  the  bill,  general  partners  in  trade ; 
*  590  ]  but  admitted  that  they  were  jointly  concerned  in  ^shipping, 
importing,  and  selling  on  commission,  divers  cargoes  of  mer- 
chandise, &c.  They  stated  various  matters  in  defence,  and 
various  counter  claims,  by  way  of  deduction  and  set-off, 
which  it  is  unnecessary  to  detail ;  the  material  facts  will 
sufficiently  appear  from  the  decretal  order  and  opinion  of 
the  Court 

Decretal  order.  The  cause  having  been  brought  to  a  hearing,  on  the 
pleadings  and  proofs,  the  Court,  on  the  30th  of  September, 
1817, made  the  following  decretal  order:  That  it  be  referred 
to  a  master  to  take  an  account  between  the  plaintiff  and 
defendants,  touching  the  matters  -in  the  pleadings  mentioned  ; 
and  that,  in  taking  such  account,  the  master  charge  the  de- 
fendants with  the  goods  in  the  pleadings  mentioned,  shipped 
by  the  plaintiff,  on  the  22d  of  December,  1807,  in  the  ship 
John  and  James,  amounting,  according  to  the  invoice,  to 
19,837  dollars,  77  cents,  consigned  by  the  plaintiff  to  the 
defendants,  and  by  them  received  to  sell  and  dispose  of  for 
the  plaintiff;  and,  also,  charge  the  defendants  with  the  goods, 
in  the  pleadings  mentioned,  shipped  by  the  plaintiff,  on  the 
24th  of  December,  1807,  in  the  ship  Hope,  and  in  the  ship 
Atahualpa,  amounting,  according  to  the  invoice  price,  to 
29,135  dollars  and  63  cents,  as  for  goods  consigned  by  the 
plaintiff  to  the  defendants  to  sell  for  the  plaintiff;  and,  also, 
charge  the  defendants  with  35,71 1  dollars  and  50  cents,  upon 
the  foot  of  a  promissory  note,  in  the  pleadings  mentioned, 
dated  the  19th  of  January,  1811,  given  to  the  plaintiff  by 
Obed  Chase,  as  the  authorized  agent  of  the  defendants,  pay- 
able sixteen  months  after  date ;  or,  if  the  master  should  be 
456 


CASES  IN  CHANCERY.  590 

of  opinion  that  Obed  Chase  was  not  duly  authorized  to  give  1818. 
it,  that,  then,  the  master  charge  the  defendants  with  that  sum,  ^**-^~+^ 
as  for  goods  sold  and  delivered  by  the  plaintiff  to  the  defend-  CONSKQUA 
ants,  on  the  19th  of  January,  1811,  at  a  credit  of  sixteen  FANNING 
months  ;  and,  also,  charge  the  defendants  with  36,690  dollars, 
63  cents,  upon  the  foot  of  a  promissory  *note,  in  the  pleadings  [  *  591  | 
mentioned,  given  the  9th  of  December,  1809,  to  the  plaintitf, 
by  John  Smith  Crary  and  William  E.  Nexscn,  as  the  author- 
ized agents  of  the  defendants,  payable  fifteen  months  after 
date ;  and,  also,  charge  the  defendants  with  only  so  much  of 
the  goods  in  the  pleadings  mentioned,  and  shipped  by  the 
plaintiff,  on  the  25th  of  November,  1810,  in  the  ship  Chinese, 
amounting  to  64,828  dollars  and  65  cents,  according  to  the 
invoice  price,  after  deducting  43,025  dollars  and  87  cents, 
being  so  much  of  the  shipment  as  the  plaintiff  appears  to 
have  assigned  to  William  Baring  and  others,  in  the  plead- 
ings mentioned,  and  that  the  sum  of  21,798  dollars,  78  cents, 
being  the  residue  of  the  last  shipment,  after  deducting  the 
assignment  to  Baring  and  Co.,  be  charged  as  for  goods  con- 
signed by  the  plaintiff  to  the  defendants,  and  by  them  received 
to  sell  for  the  plaintiff;  and,  also,  charge  the  defendants  with 
the  goods,  in  the  pleadings  mentioned,  shipped  by  the  plain- 
tiff, the  29th  of  November,  1810,  in  the  ship  Hope,  amounting, 
according  to  the  invoice  price,  to  6,370  dollars,  21  cents,  as 
for  goods  consigned  by  the  plaintiff  to  the  defendants,  and  by 
them  received,  to  sell  for  the  plaintiff;  and,  also,  charge  the 
defendants  with  interest,  at  the  rate  of  twelve  per  cent.,  upon 
all  the  items  before  mentioned,  from  such  times  as  the  said 
sums  ought  to  have  been  paid,  that  is  to  say,  in  case  of  goods 
sold,  from  the  expiration  of  the  term  of  credit ;  and  in  case 
of  goods  consigned,  from  the  times  the  proceeds  ought  to 
have  been  remitted,  having  regard  to  the  course  of  such 
dealings  ;  and  in  case  of  promissory  notes,  from  the  time  of 
payment  therein  specified.  And,  also,  charge  the  defendants 
with  900  dollars,  being  so  much  of  the  amount  of  the  prom- 
issory note,  in  the  pleadings  mentioned,  given  by  Acors 
Sheffield  to  the  plaintiff,  and  by  him  placed  in  the  hands  of 
the  defendants  to  collect,  as  was  received  by  the  defendants ; 
and,  also,  such  further  sum,  as  it  shall  satisfactorily  appear  to 
the  master,  the  defendants  might  have  ^received,  if  they  had  [  *  592  ] 
used  due  diligence  in  collecting  it,  with  lawful  interest,  from 
the  time  the  same  was  received,  or  might  have  been  received, 
as  aforesaid.  And  that  the  plaintiff  be  allowed,  in  such  ac- 
count, all  such  further  sums  as  shall  appear  that  the  defend- 
ants ought  to  account  for  and  pay,  by  reason  of  any  dealings 
and  matters  in  the  bill  mentioned,  with  such  interest  as  the 
nature  of  the  case,  and  the  course  of  the  dealings  between 
VOL.  III.  58  457 


592 


CASES  IN  CHANCERY. 


1818 


CON st QUA 

V. 

FANNING. 


Master's  re- 
port. 


Objections, 


[  *  593  ] 


the  parties,  shall  render  just.  And  that  the  master  make  all 
proper  allowances  to  the  defendants  for  all  remittances  and 
payments  made  by  them  to  the  plaintiff,  or  to  others  for  his 
use,  and  by  his  authority ;  and  that  the  master  be  at  liberty 
to  examine  the  parties,  under  oath,  on  interrogatories,  and 
such  other  witnesses,  not  already  examined,  as  either  party 
may  produce. 

The  master  made  a  report,  on  the  31st  of  January,  1818, 
in  which  he  stated  the  gross  amount  of  the  sales  of  the 
cargoes  mentioned  in  the  decretal  order,  and  the  charges 
thereon,  and  the  net  proceeds  thereof,  and  the  amount  due 
from  the  defendants  to  the  plaintiff;  and  that  he  had  charged 
the  defendants  with  the  net  proceeds  of  the  different  con- 
signments particularly  mentioned  in  the  decree,  and  with  the 
goods  sold,  and  with  the  amount  of  the  notes  ;  and  that  he 
had  charged  twelve  per  cent,  interest  on  the  items,  except 
the  last,  in  which  the  remittance  was  made  in  due  time  ;  and 
that  he  had  credited  the  defendants  for  all  remittances  and 
payments  by  them  on  account  of  the  said  consignments  and 
sales,  and  with  all  just  allowances,  and  had  calculated  interest 
at  twelve  per  cent,  on  the  credits ;  leaving  a  balance  due  to 
the  plaintiff,  for  principal  and  interest,  to  the  date  of  the 
report,  of  104,457  dollars  and  91  cents. 

The  petition  for  a  rehearing  stated  the  following  objections 
to  the  decretal  order :  1.  Because  it  does  not  direct  a  general 
account  to  be  taken  between  the  parties : 

2.  Because  the   decretal  order   limits    and  circumscribes 
*the  charges  to    be   made    by  the   defendants    against  the 
plaintiff,  to  remittances  and  payments  by  them  to  the  plaintiff, 
and  to  others,  for  his  use,  and  by  his  authority ;  and  the 
master  has  decided,  and  the  defendants  cannot  be  allowed 
for  any  charge  or  matter  of  account,  unless  it  be  shown  to 
be  a  remittance  or  payment,  specially  and  specifically  applied 
to  one  or  other  of  the  matters  with  which  the  defendants  are 
charged  and   made  accountable  by  the  decree ;  by  reason 
whereof,  matters  of  account  to  a  very  large  amount,  and,  as 
the  defendants  believe,  to  a  sum  not  less  than  86,000  dollars, 
are  wholly  excluded  from  the  said  account,  and  the  defend- 
ants are  barred  from  the  benefit  thereof: 

3.  Because,  the  defendants  are  charged  with  a  promissory 
note  given  by  Obed  Chase  to  the  plaintiff,  for  35,711  dollars 
and  50  cents,  or  with  goods  sold  and  delivered  to  the  defend- 
ant, to  that  amount,  which,  by  the  terms  of  the  decree,  as  it 
relates  to  the  defendants,  is  substantially  the  same  thing ; 
whereas,  by  the  pleadings  and  proofs,  the  defendants  are  not 
justly  liable  to  be  charged  with  the  same  in  either  shape ; 
but  only  as  for  gx)ds  consigned  to  the  defendants,  by  the 


CASES  IN  CHANCERY.  593 

plaintiff,  to  be  sold  for  his  account,  and  in  this  way  they  are  1816. 

willing  to  account.  ^^-^s-*+^ 

4.  Because   the  defendants  are  charged  with  interest  at  CONS* QUA 
twelve  per  cent,  per  annum,  upon  the  items  in  the  decree  pAKx 
mentioned,  or  notes,  or  goods  sold  by  the  plaintiff  to  the 
defendants,  and  consigned  to  the  defendants  to  be  sold,  from 

the  expiration  of  the  credits,  in  the  case  of  notes  and  goods 
sold  ;  and  in  the  case  of  goods  consigned,  from  the  time  when 
the  proceeds  ought  to  have  been  remitted ;  whereas,  the  de- 
fendants ought  not  to  be  charged  with  any  greater  interest 
in  the  case  of  consignments,  where  the  contract  was  made 
here,  than  is  allowed  by  the  law  of  this  state. 

5.  Because    the  defendants  are   charged   with  so  much 
of  the  goods  in  the  pleadings  mentioned,  and  shipped  by 

*the  plaintiff  to  the  defendants,  on  the  25th  of  November,       [  *  594  j 

1810,  on  board  the  ship  Chinese,  as  would  amount  to  21,798 

dollars  and  78  cents,  invoice  price,  being  part  of  the  invoice 

of  64,818  dollars  and  65  cents,  whereof  43,025  dollars  and 

87  cents  appeared  to  have  been  assigned  to  Baring  and  Co. ; 

which  is  erroneous,  because  no  part  of  the  said  cargo  was 

specifically  assigned  to  Baring  and.  Co, ;   but.  another  and 

different  shipment  made  by  the  plaintiff  to  the  defendants, 

in  a  former  voyage  of  the  ship  Chinese  ;  and  the  shipment 

to  Baring  and  Co.  was  in  1809,  the  amount  of  the  invoice 

of  which  was  the  sums  last  mentioned,  and  which  shipment 

is  not  stated  in  the  plaintiff's  bill ;  but  the  facts  are  set  forth 

at  large  in  the  answer. 

6.  Because  the  defendants  are  directed  to  account  for  the 
proceeds  of  the  said  invoice  of  64,828  dollars  and  25  cents, 
deducting  only  43,025  dollars  and  87  cents,  part  thereof; 
whereas,  the  defendants  are  bound  to  account  to  Baring  and 
Co.,  or  their  representatives,  for  the  full  sum  of  43,025  dollars 
and  87  cents,  whether  the  invoice- would  amount  to  that  sum 
or  not,  and  the  defendants  are  sued  in  the  Circuit  Court  of 
the  United  States ;  and  there  is  reason  to  apprehend  that  they 
will  be  compelled  to  account  for  the  full  sum,  provided  there 
should  be  a  balance  in  their  hands  to  that  amount  due  to  the 
plaintiff,  including  the  invoice  assigned. 

A  rehearing  having  been  granted,  the  cause  was  argued      Septentber  2! 
by  Riggs  for  the  plaintiff,  and  T.  A.  Emmet  and  Brackett,  a 
for  the  defendants. 

THE  CHANCELLOR.     There  is  considerable  variation  in  the     On  a  rehear 
objections  made  to  the  decree,  as  stated  in  the  petition  for  a  ™^n\l  the  par 

ty  who  petition. 

"or  the  rehearing,  only  as  to  those  parts  of  the  decree  complained  of  in  the  petition;  but  as  »o  the  othe 
party,  it  is  open  as  to  the  whole  matter 

459 


595*  CASES  IN  CHANCERY. 

1818.       rehearing,  and  in  the  points  on  which  the  cause  was  re-argued. 

v^x-x^*^  But  I  apprehend  the  rule  to  be  well  settled,  *that  upon  a 

CONSEQ.UA     rehearing,  the  cause,  with  respect  to  the  party  who  petitions 

FINING       to  renear)  is  open  only  as  to  those  parts  of  it  complained  of 

in  the  petition  ;  though,  as  to  the  other  party,  it  is  open  as  to 

tho  whole  matter  of  the  decree.     The  rule  was  so  declared 

by  Lord  Chancellor  Cowper,'m  Rawlinsv.  Powel,  (IP.  W*n&. 

300.)  and  it  is  to  be  met  with  in  all  the  subsequent  treatises 

on  the  subject. 

I  shall,  therefore,  take  up  the  objections,  as  they  were 
stated  in  the  petition  on  which  the  rehearing  was  granted. 

1 .  The  first  objection  is,  that  the  decree  did  not  order  a 
general  account  to  be  taken  and  stated  between  the  parties, 
and  that  the  decree  was  confined  to  the  specific  charges 
stated  in  the  bill.  The  second  objection  was  an  amplification 
of  the  first,  and  applied  to  that  part  of  the  decree  which 
directed  all  proper  allowances  to  be  made  to  the  defendants 
for  remittances  and  payments,  without  allowing  them  to  go 
at  large  into  all  and  every  matter  of  account.  The  defend- 
ants now  seek,  upon  the  rehearing,  for  a  general  account 
of  all  transactions  between  the  parties,  from  the  first  day  of 
January,  1805,  to  the  filing  of  the  bill. 

It  is  a  little  singular,  that  this  objection  should  not  have 

been  made  before  the  cause  went  to  the  master.     A  whole 

year  elapsed  between  the  time  of  pronouncing  the  decree 

and  the  coming  in  of  the  master's  report,  taken  upon  the 

foot  of  the  decree.     It  seems  not  to  have  been  discovered, 

that  such  a  general  account  was  wanting,  until  after  a  large 

balance  had  been  found  and  stated  against  the  defendants. 

But  the  point  is  now  open  for  reconsideration,  and  it  will  be 

requisite  to  examine  the  pleadings  closely,  to  see  what  are 

An  order  of  really  the  matters  in  issue.     I  take  it  for  granted,  that  the 

account6 before  or(^er  f°r  a  reference  must  be  founded  upon  the  pleadings 

a  master,  must  and  proofs,  and  that  it  cannot  be  made  more  extensive  than 

[he  ^pleadings  the  al^gatct  and  the probata  of  the  parties. 
and  proofs,  and  The  bill  is  founded  upon  specific  charges.  There  are 
inTrTexte^stve  none  of  an  earlier  date  than  December,  1807.  There  are 
r*5961  *various  items  distinctly  set  forth,  and  though  the  bill,  pear 
than  the  aiiega-  the  conclusion,  charges,  that  the  defendants  were  indebted 
ttons  and  proofs  jn  various  other  large  sums  of  money  for  goods  sold  and  de- 
'  wfeAe  livered,  and  for  goods  consigned  for  sale,  yet  this  general 
charges  in  the  charge  seems  to  have  been  thrown  in  for  greater  caution,  and 
setting  Spe  forth  intended  only  to  cover  any  mistakes  and  omissions  in  the 
items  of  the  ac-  particular  specification.  This  is  evidently  the  good  sense 
dates,  cTan  or-  and  logic  of  the  pleading,  and  the  prayer,  that  the  defendants 

Jer     of    refer- 
ence, for  an  account,  the  inquiry  is  not  open  beyond  the  special  matters  charged;   though  the  bill  mar 
-ontaiu  a  ^eneral  charge  at  the  conclusion  5  and  a  prayer  "  for  a  full  account  concerning  the  premises 

460 


CASES  IN  CHANCERY.  51* 

should  come  to  a  full  account  "  concerning  the  premises," 
must  be  applied  to  the  charges  in  detail,  and  to  which  only 
the  defendants  were  called  upon  to  answer. 

Neither  the  answer,  nor  the  proofs,  will  warrant  an  in- 

'.   ,  i  •       i      i  -11  FANNING. 

quiry,  beyond  the  special  matters  charged  in  the  bill. 

The  defendants,  after  denying  all  general  copartnership, 
and  all  joint  concern,  other  than  "in  the  shipment,  importa- 
tion, and  sale  on  commission,  of  cargoes  of  merchandise," 
state,  that  the  plaintiff  "  had  been  given  to  understand  that 
the  defendants  were  willing,  on  their  joint  account,  to  receive 
teas  and  other  goods  to  sell  on  commission  for  the  plaintiff," 
and  that,  "  with  a  view  to  such  sales  on  commission  for  ac- 
count of  the  plaintiff,  an  agreement  was  made  and  entered 
into  by  one  of  the  defendants,  on  their  behalf,  with  the 
plaintiff."  The  agreement  here  referred  to,  is  stated,  in  the 
answer,  to  have  been  made  in  October,  1807.  This  is  very 
decisive  proof  that  the  defendants  do  not  entitle  themselves, 
by  their  answer,  to  go  farther  back  than  the  date  of  the 
specific  charges  in  the  bill ;  and  any  attempt  to  go  farther 
would  only  be  to  involve  the  charges  in  question  in  a  laby- 
rinth, from  which  nothing  could  arise  but  embarrassment  and 
delay.  And.  indeed,  in  another  part  of  the  answer,  after 
meeting  all  the  charges  in  the  bill,  they  expressly  deny  "  that 
they  are  indebted  to  the  plaintiff,  between  December,  1805, 
and  the  filing  of  the  bill,  otherwise  than  is  above  stated,  for 
any  goods  sold  or  consigned  to  them. 

*After  giving  a  very  particular  answer  to  every  particular       [  *  597  ] 
charge,  the  defendants  give  a  detail  of  their  counter  claims 
against  the   plaintiff,  and  it  is  to  be  seen  how  far  they  are 
embraced  by  the  decree. 

In  the  first  place,  they  claim  commission  on  disbursements 
on  the  teas  sold,  on  account  of  the  plaintiff,  and  shipped  on 
board  the  vessels  mentioned  in  the  bill,  and  they  also  claim 
for  duties  guarantied  and  paid  on  the  teas  consigned  to  them, 
and  for  freight  of  teas-  shipped  in  the  ship  Chinese,  on  her 
second  voyage,  and  the  premium  for  insurance  thereon,  and 
for  freight  of  teas  shipped  on  board  the  Hope,  in  1810,  and 
for  a  further  charge  of  freight  of  the  cargo  by  the  Hope,  and 
for  charges  of  remitting  30,000  dollars  in  specie.  I  should 
apprehend  that  these  charges  were  all  reached  by  the  decree, 
which  could  only  have  intended  to  make  the  defendants  an- 
swerable for  the  net  proceeds  of  the  cargoes  consigned  to 
them,  after  making  them  all  just  allowances.  The  petition 
for  a  rehearing  does  not  state,  nor  has  it  been  shown  or 
pretended,  that  any  of  those  charges  were  not  received,  as 
competent  subjects  for  examination,  under  the  decree.  I 
presume  they  do  not  form  any  part  of  the  ground  of  com- 

461 


397  CASES  IN  CHANCERY. 

1818.       plaint;    nor   have   the   defendants   specified   the   particului 
^<r-^~^s  charges  which  have  been  rejected  by  the  master,  nor  in  what 
CONSKQUA     they  consisted.     They  deal  in  general  terms  in  their  objection, 
FANNING.      ant'  SJ1>'  only,  that  "matters  of  account  to  a  large  amount" 
are  excluded.     We  ought,  at  least,  to  have  been  so  far  in- 
formed of  what  those  matters  of  account  consisted,  as  to 
have  been  enabled  to  form  some  judgment  of  their  pertinency 
or  application  to  the  subject  matter  of  the  suit.     It  would 
be  an  act  of  great  indiscretion,  if  not  of  positive  injustice, 
to  interfere  with  a  decree  upon  such  a  loose  and  general 
allegation. 

There  are  other  counter  claims  set  up  in  the  answer, 
which  seem  to  be  utterly  groundless,  even  if  the  decree  was 
to  embrace  them. 

[  *  598  J  #1 .  The  defendants  claim  a  sum  for  the  difference  between 

ten  per  cent,  per  annum,  under  the  agreement  which  they 
set  up,  and  the  legal  interest  of  this  country,  on  certain  notes, 
the  amount  of  which  they  were  prevented  from  remitting,  for 
one  year,  by  reason  of  the  embargo.  The  solid  objection  to 
this  claim  is  to  be  found  in  the  principle  declared  in  Comvay 
in  all  ques-  y.  Gray,  (10  East,  536.)  that  in  all  questions  arising  between 

lions  arising  be-    ,/  f>     \         /•    Trp          ,      *    j.  i      •  ^jli  77- 

tween  the  sub-  "*e  subjects  oj  different  states,  each  is  a  party  to  the  public 
jects  of  differ-  authoritative  acts  of  his  own  government,  and  he  is  as  much 

ent  states,  each    •  «i  j   j    ./»  i  •        yt  /•  j      _f  7  • 

is  to  be  deemed  incapacitated  jrom  making  the  consequences  of  an  act  oj  his 
A  party  to  the  own  state,  the    foundation  of  a  claim  to  indemnity   upon  a 

laws     and    au-     /.       •  7-     ,  7  771       •/•          7        ^177  7 

thoritative  acts  joreign  subject,  as  he  would  be,  ij  such  act  had  been  done  im- 
of  his  own  gov-  mediately  and   individually  by  himself.     Lord  Ellenborough 

ernment.  .  ,    x,    ^    ,,  •  •(    ,  J  ~   ,,.  ,     j    •      m 

said,  that  this  same  principle  was  established  in  louteng  v. 
Hubbard;  (3  B.  8f  Puller,  291.)  and,  indeed,  we  find  the 
principle  declared  in  every  period  of  the  English  law,  that 
every  subject  is  to  be  deemed  a  party  to  the  laws  of  his  own 
government.  (Bro.  Abr.  tit.  Parliament,  pi.  41.  Dyer,  23. 
b.  pi.  148.  9  Co.  107.  a.  Lord  Mansfield,  in  Wadham  v. 
Marlowe,  cited  in  8  East,  314.  note.)  The  force  of  this 
doctrine  must  be  specially  felt  and  acknowledged  in  this 
country,  where  the  acts  of  the  government  are  practically, 
as  well  as  theoretically,  the  acts  of  the  representatives  of 
the  people. 

2.  The  defendants  further  claim,  in  their  answer,  the 
heavy  sum  of  17,085  dollars  and  94  cents,  for  overcharges 
on  teas  and  nankeens  shipped  to  them  in  1809  and  1810, 
and  which  sum  was  over  and  above  what  equal  qualities  of 
the  same  articles  could  have  been  furnished  for,  at  the  time 

if  a  merchant  tnev  were  shipped.     If  the  goods,  in  this  case,  were  con- 
abroad      send        J 

foods  to  a  mer- 
chant here,  by  his  order,  or  that  of  his  agent,  which  are  received  with  the  invoice,  and  accepted  without 
objection  at  the  time,  the  merchant  here  cannot,  afterwards,  object,  that  the  articles  were  overcharged 
n  price. 

462 


CASES  IN  CHANCERY.  596 

signed  to  the  defendants  to  sell  on  commission,  they  had  no  1818. 
right  to  complain  of  the  charge,  for  it  was  no  injury  to  them, 
and  the  plaintiff  was  in  the  exercise  of  his  perfect  right.  If 
the  goods  were  sold  and  delivered  to  the  defendants,  why 
did  they  accept  of  them  ?  Why  did  their  agent  at  Canton 
accept  of  them,  in  the  first  instance  ?  The  *invoice  always  [  *  599  ] 
accompanied  the  shipment  and  delivery  of  the  cargo,  and 
they  affirmed  the  charge,  by  the  acceptance  of  the  goods. 
The  date  of  the  charge,  according  to  the  schedule  annexed 
to  the  answer,  is  in  August,  1812.  The  pretension  is  ground- 
less, in  every  view ;  the  charge  is  too  loose  and  at  too  late  a 
•period  to  be  deserving  of  credit.  It  does  not  even  appear, 
whether  the  goods  were  shipped  on  sale  or  on  consignment, 
nor  is  there  any  specification  of  particulars,  as  a  particle  of 
proof  to  give  color  to  the  suggestion. 

3.  Another  charge  is,  that  the  defendants  paid  one  David 
Bentock  the  difference  of  value  of  900  pieces  of  nankeen, 
shipped  to  them  as  for  long  nankeens,  and  sold  as  such,  and 
which  turned  out  to  be  pieces  of  the  short  kind.     The  charge 
is  of  the  date  of  June,  1811,  and  there  is  no  proof,  either  of 
the  defect  or  of  the  payment. 

4.  The  defendants  further  charge  near  4,000  dollars  for 
the  difference  of  interest,  between  10  and  12  per  cent.,  ex- 
acted from  their  agents,  Crary  and  Nexsen,  on  sundry  prom- 
issory notes  paid  by  them  to  the  plaintiff;  and  they  rely  upon 
an  agreement,  stated  to  have  been  made  by  Edward  Fanning, 
on  behalf  of  the  defendants,  with   the  plaintiff,  in  October, 
1807,  by  which  10  per  cent,  interest  only  was  to  be  charged. 

The  only  agreement  proved,  is  one  of  the  8th  of  November, 
1807,  made  between  the  plaintiff  and  Edtvard  Fanning,  one 
of  the  defendants.  It  differs  materially  from  the  one  set 
forth  in  the  answer,  and  there  is  no  evidence  in  the  case, 
that  Fanning  was  authorized  to  make  such  an  agreement  on 
behalf  of  the  defendants.  We  have  seen  that  the  defend- 
ants, in  their  answer,  deny  any  copartnership  between  them- 
selves, except  for  the  single  purpose  of  the  shipment,  im- 
portation, and  sale  on  commission,  of  cargoes.  One  of  the 
copartners,  for  such  a  special  purpose,  had  no  authority  to 
bind  the  rest  to  such  an  agreement  as  this,  which  was  clearly 
not  within  the  scope  and  purview  of  the  *partnership.  Nor  [  *  600 
does  it  appear,  that  the  agreement,  as  proved,  was  ever  acted 
upon  by  the  parties.  It  related  to  a  ship,  "  to  be  built  at 
New-York,  of  350  or  400  tons  burthen,  for  the  Chinese 
trade,"  and  the  plaintiff  was  to  furnish  one  third  of  the 
cargo,  and  the  defendants  goods  for  the  residue.  The  de- 
fendants were  to  have  goods  to  the  amount  of  12,000  dollars 
consigned  to  them  to  sell,  and  they  were  to  retain  the  net 

463 


600  CASES  IN  CHANCERY. 

1818.       proceeds,  free  of  interest,  as  long  as  the  ship  should  continue 
^*r-^~*^    in  the  China  trade,  and  they  were  to  carry  the  plaintiff's  cargo 
CO.VSEQUA     free  of  freight. 

G  None  of  these  provisions  were  ever  carried  into  effect;  no 

ship  was  ever  built  and  put  into  the  Chinese  trade,  on  the 
foot  of  this  agreement.  The  plaintiff  was,  also,  to  do  the 
business  of  the  ship  at  Canton,  without  charging  any  com- 
mission, and  the  defendants  were  to  sell  the  cargoes  of  the 
ship  at.  New-York,  free  of  commission.  The  charges,  in  the 
answer,  of  freight  and  commissions,  are  directly  repugnanl 
to  these  provisions,  and  afford  the  most  satisfactory  proof 
that  the  agreement  was  never  observed  or  regarded  as 
binding. 

The  defendants  admit,  that  the  lawful  and  customary  rate 
of  interest,  at  Canton,  is  12  per  cent.;  and  all  pretence  of  a 
claim  to  be  charged  a  lower  rate  of  interest,  on  the  ground 
of  this  agreement,  is  clearly  without  foundation. 

Where  a  con-  5.  A  further  charge  in  the  answer  is,  for  the  plaintiff's 
sefi"eesoine°°of  proportion  of  bad  debts  made  by  the  defendants,  on  the  sale 
them  on  credit,  of  teas  on  their  joint  account,  to  the  amount  of  2,060  dollars 
?hed  ScoSgno^  and  71  cents.  But  the  answer  admits,  that  the  plaintiff  had 
and  pays  him  charged,  and  had  "  received  payment  from  them  of  that 
lie  cannot,°Uaf-  sum  j "  this  act  certainly  closed  the  inquiry,  and  the  defend- 
tcrwards,  claim  ants  must  be  considered  as  assuming  those  debts  to  themselves. 

to  be  reimburs-   rpi  i  j    u  i   •       j      T  c  * 

ed,  for  any  part,  1  here  would  be  no  end  in  dealings,  or  saiety  to  persons.  11 
on  the  ground  a  charge  of  this  kind  was  to  be  indulged,  after  the  debt  itself 
made  ^n  Ihe  nao!  been  assumed  and  paid,  and  when  no  fraud,  or  mistake, 
[  *  601  ]  is  suggested.  It  *is  easy  to  perceive  how  very  precarious 
sale,  there  being  the  admission  of  such  a  principle  would  leave  the  concerns 
take  In' the'set-  °f  the  foreign  creditor  in  a  distant  region  of  the  globe,  who 
Ornv  nt.  has  no  means  of  knowing  the  debtors,  or  of  guarding  against 

imposition.  The  same  observations  apply  to  another  charge 
for  a  bad  debt  on  a  sale  of  tea,  received 'by  the  Chinese  on 
her  secend  voyage,  and  sold  to  J.  D.  Miller.  The  cargo 
was  shipped  in  November,  1810,  and  this  charge  is  of  the 
date  of  March,  1813,  and  the  defendants  admit  in  their  an- 
swer, that  they  "  paid  and  settled  with  the  plaintiff  for  this 
debt,"  and,  therefore,  the  claim  is  to  be  "  reimbursed  " 

6.  The  defendants  advance  another  charge  of  6,583 
dollars  and  56  cents,  being  the  difference  of  market  price 
of  certain  seal  and  other  skins,  shipped  by  the  defendants 
and  consigned  to  the  plaintiff,  and  received  by  him  from  their 
supercargo,  in  March,  1807,  and  for  which,  they  say,  the 
plaintiff  "  was  to  allow  as  good  a  price  in  cash  as  any  mer- 
chant in  Canton  would  give,  and  that  the  plaintiff  did  not 
allow  or  account  with  them  but  for  a  very  inferior  price.1' 
This  cargo  was  delivered  in  1807,  and  the  charge  bears  date 
464 


CASES  IN  CHANCERY.  601 

as  late  as  1812.  and  admits,  that  the  parties  had  accounted        1818. 
together  for  the  skins.     To  open  this  inquiry,  after  the  lapse  v^^-v^^/ 
of  so  many  years  from  the  delivery,  and  after  the  settlement     CONSEQUA 
which  the  very  terms  of  the  charge  imply,  would  be  very      FANNING. 
unusual,  and  hazardous  to  the  cause  of  justice.     There  has 
not  been  a  particle  of  proof  in  support  of  the  charge,  and  it 
bears  a  portion  of  hardihood  in  its  very  features. 

7.  Another  charge  in  the  answer  is  of  the  sum  of  14,639 
dollars  and  94  cents,  for  interest  due  from  the  plaintiff,  on 
sundry  large  sums  or  balances  in  his  hands,  due  and  unpaid 
by  the  plaintiff,  from  1806  to  1812.     This  is  a  most  extraor- 
dinary, as  well  as  a  most  extravagant  item.     Unsettled  ac-      Unsettled  ac 
counts  do  not  bear  interest,  as  of  course,  until  liquidation,  ^""interest"0 
The  charge  assumes,  that  the  balances  were  paid  in  1812. 

No  interest  subsequent  to  that  period  is  claimed.     *Why  was       [  *  602  ] 
the  principal  received  without  interest,  if  the  latter  was  due  ? 
Was  there  ever  an  account  unravelled  for  such  a  purpose, 
after  the  balance  had  been  received  ?     There  has  been  no 
explanation  offered;  and  when  would  accounts  be  closed,      Where  aba 

j  i-,-       ,.  -r          i     •          •   •  L  -ii    j  i   ance  °'  an  a(> 

and  litigations  cease,  it  such  inquiries  are  to  be  permitted?  couilt  is  pa;d 
The  receipt  of  the  balance  is  good  proof  that  no  interest  was  ™th°ut  . .  * 
due  by  the  course  of  the  dealing,  or  that  it  was  received,  or  estTfcannot'be 
was  waived  ;  and  such  a  presumption  must  stand  good,  until  mad®  after 
put  down  by  contrary  proof,  of  which  there  is  none. 

8.  The   defendants   further   charge   the   sum   of   12,877 
dollars  and  51   cents,  for  freight  of  the  cargo  on  board  the 
ship  Chinese,  from  Canton  to  New-York,  being  the  plaintiff's 
first  consignment,  together  with  the  further  sum  of  2,366 
dollars  and  43  cents,  for  the  premium  of  insurance  and  com- 
missions respecting  that  cargo.     There  is  no  charge  in  the 
bill  respecting  this  cargo,  which  was    the  one  assigned  to 
Baring  and  Co.,  and  for  which  the  defendants  admit  in  their 
petition  for  a  rehearing,  that  "  they  are  bound  to  account  to 
Baring  and  Co.,  or  their  representatives,  for  the  full  amount." 
They  are  bound  to  account  only  for  the  net  proceeds,  and, 
consequently,  these  charges  for  freight,  and  insurance  and 
commissions,  are  to  be  deducted  from  those  proceeds,  and 
these  items  are  to  be  settled  with  Baring  and  Co., -and  not 
with  the  plaintiff.     Nothing  can  be  plainer  than  this  course, 
and  nothing  more  unreasonable  than  to  make  these  charges 
against  the  plaintiff,  after  the  admission,  and  the  proof  that 
he  is  not  the  owner  of  the  cargo,  nor  of  the  proceeds. 

9.  The  next  charge  is  144  dollars  and  51   cents,  for  teas 
which  proved  to  be  of  a  bad  quality,  and  which  the  defend- 
ants had  sold  for  the  plaintiff,  and  which  sum  "  they  were 
obliged  to  refund  by  reason  thereof."     This  charge  bears 
date  as  late  as  April,  1813,  long  after  all  the  shipments  in 

VOL.  III.  59  465 


603*  CASES  IN  CHANCERY. 

1818.  question,  and  we  have  no  explanation  of  the  case,  nor  upon 
*^^~~.s-~^~s  what  grounds  the  defendants  were  obliged  to  refund  *tha1 
CONSEQUA  sum,  or  to  whom,  or  by  what  authority,  or  how  the  sale  was 
FAN-SING  conducted,  or  what  assurances,  or  what  sample  was  then 
afforded.  The  charge  is  equally  suspicious  and  unsupported. 
10.  The  defendants,  in  addition  to  all  these  unfounded 
charges,  state,  that  the  plaintiff  purchased  of  them,  in  1807, 
2,200  piccols  of  sandal  wood,  amounting  to  52,800  dollars, 
and  "  debited  to  the  plaintiff,  and  for  which  he  ought  to  pay,  or 
account  to  them."  The  proof  that  appears  to  bear  upon 
this  charge,  is  a  certificate  signed  by  the  plaintiff,  and  the 
defendant  Edward  Fanning,  dated  the  8th  of  October,  1807, 
stating,  that  the  latter  had  sold  to  the  former  a  cargo  of 
sandal  wood,  laden  on  board  the  Hope,  at  the  Fegee  islands, 
and  soon  expected  to  be  delivered,  and  to  be  "  payable  in 
cash."  It  would  be  a  little  extraordinary,  if  such  a  cargo, 
declared  to  be  payable  in  cash  as  early  as  1807,  should  have 
been  delivered,  and  the  payment  deferred  to  this  day.  The 
charge  does  not  appear  to  be  announced,  at  the  end  of  the 
answer,  with  the  confidence  belonging  to  truth  ;  and  after  all 
the  various  dealings  and  payments  made  by  the  defendants, 
and  confessed  in  the  answer,  I  entertain  an  entire  conviction 
that  this  charge  is  unfounded.  The  answer  does  not  say, 
that  the  cargo  was  not  paid  for,  but  only  that  the  plaintiff 
ought  to  pay,  or  account  to  them.  The  testimony  of  Obed 
Chase  relates  to  a  subsequent  sale  of  sandal  wood  to  the 
plaintiff,  in  November,  1810;  he  was  also  at  Canton,  in  1807, 
when  the  ship  arrived  from  the  Fegee  islands,  and  he  resided 
at  the  same  house  with  Fanning,  for  fifty  days,  and  they  had 
frequent  conversations  together,  and  not  a  syllable  of  testi- 
mony is  given  of  any  complaint  by  Fanning  of  non-payment. 
He  makes  no  mention  of  any  such  difficulty,  nor  do  we  hear 
a  complaint,  or  a  word  as  to  the  non-payment  for  the  sandal 
wood,  in  1807,  until  we  meet  with  the  charge  thrown  in  as 
a  make-weight,  at  the  end  of  the  answer  of  the  defendants 
[  *  604  ]  in  this  cause.  The  sum  was  of  too  great  *consequence  to 
have  been  forgotten,  even  in  the  India  trade.  If  that  cargo 
had  really  never  been  paid  for,  it  is  sufficient  to  say,  that  it 
was  a  debt  due  to  Fanning,  and  not  to  the  defendants,  for 
they  have  expressly  renounced,  in  their  answer,  all  copart- 
nership concerns,  except  in  the  limited  terms  which  have 
been  mentioned. 

.  There  are  two  other  specific  charges  in  the  answer,  which 
remain  to  be  disposed  of. 

One  of  them  is  demurrage  of  the  ship  Hope,  detained  by 
the  plaintiff,  and  this  charge  rests  upon  the  testimony  of 
Captain  Chase.  He  says,  that  when  he  arrived  at  Canton^  iu 
466 


CASES  IN  CHANCERY.  604 

November,  1810,  with  a  cargo  of  sanJal  wood,  he  was  de- 
tained  from  the  20th  of  December  to  the  beginning  of  January 
following,  in  consequence  of  a  dispute  between  him  and 
Consequa,  as  to  the  price,  arising  from  the  quality  of  the 
wood.  It  seems,  that  Chase  judged  it  expedient,  or  neces- 
sary, at  last,  to  comply  with  the  terms  of  the  plaintiff,  and 
the  time  consumed  in  that  dispute  the  defendants  charge  as 
demurrage.  Such  a  charge  is  without  precedent.  Demur- 
rage means  a  delay,  at  the  instance  of  a  merchant,  for  further 
time  to  load  or  unload,  or  to  sail  with  convoy,  and  for  which 
he  covenants  to  pay  a  daily  sum.  The  ship  Hope  was  not 
detained  at  the  instance  or  for  the  benefit  of  the  plaintiff. 
The  delay  was  the  consequence  of  a  dispute  between  the 
parties,  as  to  the  price  of  an  article,  and  may  have  arisen  as 
much  from  the  obstinacy  or  unreasonableness  of  Chase  as  of 
Consequa.  The  merit  of  that  dispute  is  not  now  the  point 
of  inquiry.  It  is  certain  that  the  charge,  as  it  stands,  is 
without  the  shadow  of  foundation ;  nor  does  the  charge  and 
the  proof  correspond,  in  any  degree.  The  detention  spoken 
of  by  Chase,  was  in  1810,  and  he  says  it  did  not  exceed 
25  days,  and  he  should  suppose  45  dollars  a  day  to  be  a  . 
reasonable  demurrage  for  the  Hop0..  The  charge  (see  ac- 
count, No.  1.)  is  of  the  date  of  August,  1812,  and  is  as 
*follows :  "  Demurrage  on  ship  Hope,  44  days,  at  150  dol-  [  *  60(i  ] 
lars — 6,600  dollars."  It  would  really  seem  as  if  a  number 
of  these  groundless  charges  had  been  fabricated,  after  all  the 
business  of  the  parties  had  terminated,  for  the  mere  purpose 
of  imposition. 

The  other  charge  is  for  "  costs,  freight,  and  expenses  of 
a  cow  sent  to  the  plaintiff."  The  receipt  of  this  cow  is 
admitted  in  a  letter  of  the  plaintiff,  of  the  30th  of  November, 
1810,  (being  all  the  proof  which  we  have  upon  the  subject,) 
in  which  he  says,  "  I  thank  you  very  much  for  your  attention 
in  sending  me  so  handsome  a  cow  and  calf."  Considering 
the  terms  of  this  acknowledgment,  the  trifling  value  of  the 
article,  and  the  extensive  business  in  which  the  parties  were 
engaged,  I  should  infer,  that  this  cow  was  intended,  and  re- 
ceived, as  a  gift,  and  that  the  defendants  had,  afterwards, 
most  ungraciously  turned  it  into  a  charge.  It  appears,  from 
their  account,  No.  1.,  that  the  date  of  the  charge  of  the  cow 
is  the  31st  of  December,  1812,  and  is  in  these  words:  "cost, 
freight  and  expenses  of  a  cow  sent  per  Chinese,  May,  1810, 
250  dollars."  Here  was  an  interval  of  above  two  years  and 
a  half,  between  the  shipment  of  the  cow  and  this  extravagant 
charge ;  and  the  letter  of  the  plaintiff,  to  which  I  have  re- 
ferred, contains  another  and  a  more  explicit  act  of  kindness 
between  the  parties,  and  gives  additional  force  to  the  con- 

467 


fi05  CASES  IN  CHANCERY. 

1818.       struction  which  I  have  drawn.     The  plaintiff,  on  behalf  of 
•^r~-^s~+^s  his  son,  acknowledges  a  "very  handsome  comeshavv,"  from 
CONSEQ.UA     the  son  of  Edward  Fanning ;  and  he  courteously  meets  the 
t'A/MNG.      civility,  by  sending  "  some  little  comeshaw,"  in  return,  and 
declaring  that  he  should  be  "  very  happy  to  see  Mr.  Fanning 
in  Canton."     Without  some  farther  proof,   I  should  never 
consent  to  the  charge  in  question,  considering  all  the  circum- 
stances under  which  it  is  presented. 

I  have  thus  gone  through  a  laborious  examination  of  all 
the  charges  which  the  defendants  have  specified  in  their 
f  *  GOG  ]  ^answer,  and  such  of  them  as  are  tenable  are  shown  to  bo 
embraced  by  the  terms  of  the  decree.  It  is  not  stated,  or 
alleged  that  any  of  the  charges  which  are  considered  to  be 
admissible  subjects  of  inquiry,  were  excluded  before  the 
master ;  nor  do  the  defendants  show,  or  specify,  the  charges 
which  they  wish  to  establish.  We  have  a  right  to  presume 
that  those  were  deemed  the  most  material  and  best-founded 
charges,  which  are  minutely  detailed  in  the  answer,  and  which 
we  have  had  under  review.  Can  it,  then,  be  fit  or  discreet, 
or  would  it  be  reasonable  or  just,  after  the  samples  which  the 
defendants  have  given  us,  that  a  general  account  should  be 
decreed  of  all  matters  and  claims  whatsoever,  without  any 
explanation  of  what  they  consist,  or  how  they  arose,  or  upon 
what  testimony  they  rest  ?  It  would  be  to  delay,  or  defeat 
justice,  by  a  fruitless  and  vexatious  inquiry. 

While  in  this  stage  of  the  cause,  I  may  notice,  once  for 
all,  the  charges  which  have  been  made,  and  the  philippic 
pronounced  at  this  rehearing,  as  well  as  upon  the  former 
argument,  against  the  tyranny  and  oppression  of  Coruequa, 
and  the  other  Hong  merchants,  at  Canton.  What  was  said 
by  Captain  Chase  (which  I  shall  notice  more  particularly 
hereafter)  affords  the  only,  but  very  insufficient,  color  for 
the  accusation.  Judging  from  the  pleadings  and  proofs  in 
this  cause,  I  should  be  led  to  conclude,  that  the  plaintiff  was 
a  man  "  more  sinned  against  than  sinning."  No  general 
charges,  unsupported  by  specific  and  pertinent  testimony. 
can  have  any  influence  in  the  case.  It  may  be,  that  the 
Chinese,  considered  in  respect  to  their  general  manners  and 
morals,  are,  as  I  incline  to  think  they  are,  mean  and  semi- 
barbarous  ;  but  I  have  no  doubt  that  there  are  numerous 
individuals  among  them,  who  are  kind,  beneficent,  and  just. 
If  I  am  not  mistaken,  instances  of  such  characters  are  men- 
tioned by  Bell  and  Barrotv,  in  their  accounts  of  the  two 
most  interesting  embassies  that  ever  went  from  Europe  to 
[  *  607  ]  China.  We  may  *as  well  suppose  Consequa  to  be  of  this 
class  as  of  any  other.  His  letters,  which  have  been  read,  so 
far  from  affording  ground  for  crimination,  may  rather  be 
4G8 


CASES  IN  CHANCERY.  GOT 

cited  as  proofs  of  a  frank  and  manly  character.  We  have  18 IS. 
seen,  in  the  case  of  his  son,  that  he  evidently  cherishes  tender  v^^-x^-^,- 
feelings.  He  says,  indeed,  in  his  letter  of  the  21st  of  October,  CONSEQUA 
1809,  that  he  had  charged  compound  interest  on  all  notes  F  M^' H,. 
due  for  above  a  twelvemonth.  This  is  nothing  more  than 
the  practice  of  all  those  merchants  who  make  annual  rests 
in  their  accounts ;  and  we  have  the  authority  of  very  high 
names  to  say,  that  there  is  nothing  intrinsically  unjust  in 
such  a  charge.  It  is  no  wonder  that  the  plaintiff'  should 
think  so  seriously  of  the  failure  to  pay  interest,  since  the 
non-payment  of  interest  subjects  the  debtor,  by  the  Chinese 
laws,  to  corporal  punishment.  (Staunton's  Ta  Tsing  Lew 
Lee,  s.  149.)  He,  also,  in  that  letter,  admits,  that  he  insisted 
on  twelve,  instead  of  ten,  per  cent. ;  yet  the  answer  of  the 
defendants  acknowledges  that  twelve  per  cent,  is  the  lawful 
and  customary  interest  of  his  country.  He  admits,  also,  that 
the  agents  of  the  defendants  used  every  exertion  and  argu- 
ment to  induce  him  to  receive  ten  per  cent. ;  but  he  tells  them, 
"  I  refused,  and  would  have  done  the  same,  had  either,  or 
all  of  you,  gentlemen,  been  present,  and  made  the  settlement 
yourselves." 

When  such  a  man,  from  such  a  people,  comes,  as  a  suitor, 
into  our  Courts,  he  ought  not  to  be  heard  with  a  mist  of 
prejudice  hanging  over  his  name,  his  character,  and  his  coun- 
try. His  claims  should  be  received  with  candor,  and  treated 
with  impartiality.  It  is  no  more  than  common  justice ;  but 
the  sense  of  our  responsibility  cannot  fail  to  be  more  lively, 
when  we  recollect  that  the  people  to  whom  he  appeals,  are 
in  possession  of  gifts  denied  to  the  Chinese ;  I  mean  the 
blessings  of  freedom,  and  the  light  of  science,  and  the  stin 
brighter  light  of  the  Christian  revelation. 

2.  *The  next  objection  to  the  decree  is,  that  the  defend-  [  *  608  ] 
ants  are  charged  with  Chase  s  note  for  35,711  dollars  and 
50  cents,  or  with  goods  sold  and  delivered  to  that  amount, 
whereas  they  are  not  chargeable  with  that  sum  in  either 
shape,  and  ought  only  to  be  charged  with  the  same,  as  for 
goods  consigned  to  them,  to  be  sold  for  the  account  of  the 
plaintiff,  and  that,  in  that  way,  they  are  willing  to  account. 

The  bill  charges,  that  Chase  gave  the  notes  as  the  author- 
ized agent  of  the  defendants,  for  goods  sold  and  delivered  to 
the  defendants.  The  answer  admits  the  note,  but  denies 
that  Chase  was  the  agent  of  the  defendants  for  that  purpose. 
The  defendants  farther  admit,  that  the  goods,  for  which 
Chase's  note  was  given,  "  were  delivered  by  the  plaintiff  to 
them,  and  were  intended  by  the  plaintiff  as  a  sale  to  them ;  " 
but  they  say,  that  upon  the  arrival  of  the  Hope  with  that 
cargo,  and  before  unloading,  they  entered  a  protest  against 

469 


608  CASES  IN  CHANCERY 

1818.  receiving  the  goods  on  their  own  account,  but  that  they 
should  receive  and  dispose  of  them  on  account  of  the  plain- 
tiff.  The  only  objection  here  to  the  decree  is,  that  the  de- 
fendants  are  charged  with  the  cargo  as  sold,  whereas  they 
are  willing  to  account  for  it,  as  consigned  to  them.  The 
goods  are  delivered  by  the  plaintiff  to  them  as  a  sale,  and 
the  plaintiff  intends  the  delivery  to  be  a  sale.  All  this  is 
admitted,  and  the  defendants  take  them  under  a  protest,  thai 
they  receive  the  goods  as  a  consignment,  and  not  as  a  sale. 
The  defendants  have  not  proved  this  protest ;  and  if  they 
had,  it  would  be  about  as  valid  and  efficacious  as  a  mental 
reservation  to  an  oath.  Of  what  use  was  this  protest  to  the 
plaintiff,  who  resided  on  the  other  side  of  the  globe  ?  The 
acceptance  and  delivery  are  correlative  acts,  and  if  the  plain- 
tiff delivers  for  one  purpose,  as  he  did  in  this  instance  to 
CAase,  for  the  defendants,  and  the  defendants  accept,  they 
accept  for  that  purpose,  and  cannot  take  for  any  other.  A 
different  construction  would  banish  all  sincerity  and  probity 
*  609  ]  in  dealing.  It  would  enable  a  party  *to  take  the  goods,  and 
set  up  a  consignment  or  a  sale  as  the  cargo  happened  to  come 
to  a  falling  or  rising  market.  <  Such  a  principle  would  be 
equally  a  reproach  to  the  Court  who  adopted,  and  to  the 
party  who  applied  it.  Indeed,  the  answer  of  the  defendants 
evidently  considered  this  defence  as  feeble,  for  they  provide 
a  set-off,  in  case  they  are  liable  to  pay  the  amount  of  the 
note,  and  specially  insist  upon  the  agreement  of  Fanning,  in 
1807,  for  ten  per  cent.,  in  opposition  to  the  terms  of  the 
note,  which  are  twelve  per  cent. 

The  answer  says,  that  the  cargo  of  the  Hope,  in  this  case, 
was  put  on  board,  at  Canton,  by  the  plaintiff,  without  the 
consent  of  Chase,  further  than  the  net  proceeds  of  the  out- 
ward cargo.  How  far  the  cargo  so  put  on  board  exceeded, 
or  whether  it  exceeded  at  all,  the  proceeds  of  the  outward 
cargo,  is  not  stated,  or  averred.  There  is  no  precise  evidence 
of  any  gravamen,  even  upon  the  ground  taken  by  the  de- 
fendants. There  is  something,  however,  very  improbable, 
and  contrary  to  the  most  obvious  dictates  of  common  sense, 
in  the  charge,  that  the  plaintiff  forced  any  part  of  the  cargo 
on  board  of  the  Hope,  without,  or  against  the  consent  of  the 
captain.  Would  any  reasonable  man  part  with  his  own 
property,  in  this  violent .  way,  against  the  consent  of  the 
purchaser,  and  trust  his  goods  in  this  country,  without  any 
security  but  a  note  extorted  from  Captain  Chase  1  All  the 
transactions  of  Consequa  show  more  method  in  his  madness. 
The  whole  accusation  is  absurd  and  incredible.  If  he  did 
do  this  preposterous  thing,  how  came  the  defendants  so  qui- 
etly to  receive 'the  goods?  Their  very  acceptance  of  the 
470 


CASES  IN  CHANCERY. 


(509 


goods  in  this  country  denies,  or  waives  the  violence  of  the 
shipment  at  Canton.  But  the  testimony  of  Captain  Chase 
does  not  warrant  the  accusation.  He  does  not  pretend  that 
the  cargo  which  he  received  was  a  coerced  delivery  to  him. 
All  that  he  complains  of  is  the  dispute  between  him  and  the 
plaintiff,  as  to  the  price  of  the  sandal  wood,*and  that  he  did, 
"as  it  Avere  from  necessity,"  comply  with  the  terms  of  the 
plaintiff,  and  give  the  note.  Yet  to  show  how  very  fallacious 
is  his  memory,  he  says,  the  note  he  gave  was  for  about  20,000 
dollars,  payable  in  18  months  ;  whereas,  it  has  been  admitted 
to  have  been  for  35,717  dollars  and  50  cents,  payable  in 
16  months. 

But  this  point  need  not  be  pursued  further ;  for  the  petition 
for  a  rehearing  admits  that  the  defendants  are  responsible 
for  the  goods,  to  the  amount  of  the  note,  as  for  a  consignment ; 
and  if,  instead  of  a  consignment,  the  act  ought  to  be  deemed 
a  sale,  there  is  an  end  of  the  question. 

3.  Another  ground  for  the  rehearing  is,  that  by  the  decree 
the  defendants  are  charged,  on  notes,  and  goods  sold  and 
consigned,  with  interest,  at  the  rate  of  12  per  cent.,  whereas 
the  defendants  ought  not  to  be  charged,  in  the  case  of  con- 
signments, where  the  contract  was  made  here,  with  any 
greater  interest  than  the  lawful  interest  of  this  state. 

The  answer  to  this  objection  is,  that  it  is  an  acknowledged 
rule,  that  interest  must  be  paid  according  to  the  law  of  the 
country  where  the  debt  was  contracted,  and  to  be  paid,  and 
not  where  it  is  sued  for.  The  cases  cited  by  the  plaintiff's 
counsel  show  this.  (See,  also,  Ekins  v.  East  India  Company, 
1  P.  fVms.  395.  and  2  Fomb.  Tr.  of  Ey.  442.  446.)  The 
principle  is  entirely  applicable  to  the  case  of  consignments. 
The  plaintiff  consigns  a  shipment  to  the  defendants,  and  the 
cargo  is  received  at  Canton  by  the  agent  of  the  defendants, 
on  their  behalf.  Canton  is  then  the  place  where  the  contract 
is  made,  and  Canton  is  the  place  where  the  debt  is  to  be 
paid.  The  defendants  admit,  in  all  the  cases  of  cargoes 
consigned  to  them,  that  they  were  to  receive  and  remit  the 
proceeds,  and  the  interest  for  which  they  are  chargeable  is 
upon  the  sum  which  ought  to  have  been  remitted,  and  to  be 
computed  from  the  default.  There  is  no  difference,  in  prin- 
ciple, as  to  this  point,  between  a  sale  and  a  consignment. 
*The  contract  is  equally  made,  and  the  debt  equally  to  be 
paid  in  China,  in  the  one  case  as  in  the  other ;  and  if  we 
should  deny  to  the  Chinese  merchant  his  own  legal  rate  of 
interest  on  such  contracts,  we  should  be  doing  him  an  in 
justice  which  he  would  not  meet  with  from  the  commercial 
part  of  Europe.  To  refuse  to  enforce  such  foreign  contracts, 

471 


C>,  (SEQ.UA 

V. 
F    NNING. 

[*610i 


Interest  is  pay 
able  according 
to  the  law  of  the 
country  where 
the  debt  is  ccn 
traded,  and  to 
be  paid. 

WbereaCVa 
nese  merchant 
consigns  goods 
to  a  merchant 
in  New-  York, 
for  sale,  which 
are  delivered  at 
Canton,  to  the 
agent  of  the 
J\lew-  York  mer 
chant,  who  neg 
lects  to  remil 
the  proceeds  t< 
the  consignor 
he  is  entitled  to 
interest  on  the 
amount  accord- 
ing to  the  law 
of  China,  being 
at  1%  per  cent. 

*61l 


611  CASES  IN  CK  \NCERY. 

1818.       as  to  interest,  say  the  English  books,  would  put  a  stop  to  all 
foreign  trade. 

4.  The  two  remaining  objections  to  the  decree  relate  to 
FANNING  *ne  allowance  made  in  favor  of  the  claim  of  Baring  and  Co., 
and  it  is  contended,  that  there  was  an  error  in  the  decree,  in 
supposing  part  of  the  64,828  dollars  and  65  cents,  being  the 
second  cargo  of  the  ship  Chinese,  was  ever  assigned  to 
Baring  and  Co.,  and  that,  notwithstanding  that  error,  a 
sufficient  allowance  out  of  the  cargo  was  not  made  for  that 
claim. 

This  objection  is  not  very  intelligible ;  but  the  counsel  for 
the  plaintiff  concede,  that  there  is  a  mistake  in  the  decree, 
in  supposing  that  the  assignment  to  Baring  and  Co.  was  out 
of  the  second  shipment  in  the  ship  Chinese,  in  1810,  whereas, 
it  was  out  of  the  first  shipment  in  1809,  and  it  was  the  ad- 
mission of  the  counsel  himself  which  led  me  into  this  error. 
The  mistake  in  the  decree  ought  to  be  corrected  in  favor  of 
the  plaintiff,  and  not  of  the  defendants.  The  charge  in  the 
bill  is  for  the  cargo  shipped  on  board  the  Chinese,  in  No- 
vember, 1810,  and  consigned  to,  and  received  by  the  de 
fendants.  The  answer  admits  the  consignment  and  deliv- 
ery, and  it  sets  up  the  assignment  to  Baring  and  Co.,  of 
the  cargo  shipped  on  board  the  Chinese  on  a  prior  voyage 
in  1809,  and  which  cargo  is  not  in  question  in  this  suit. 
Instead,  then,  of  making  the  deduction  out  of  the  cargo 
shipped  in  1810,  to  satisfy  the  assignment,  there  ought  to 
have  been  no  deduction,  and  the  defendants  should  have 
been  ordered  to  account  for  the  whole  of  that  last  cargo. 
There  were  two  shipments  by  the  ship  Chinese.  The  one  in 
f  *  612  ]  1809,  amounted  to  *43,025  dollars  and  87  cents,  the  precise 
amount  of  cargo  assigned  by  the  plaintiff  to  Baring  and  Co. 
The  other,  in  1810,  amounted  to  64,825  dollars  and  65  cents, 
and  this  is  the  one  of  which  the  plaintiff  seeks  an  account. 
In  consequence  of  a  mistake,  the  decree  gives  the  plaintiff 
only  one  third  part,  instead  of  the  whole  cargo  consigned  to 
the  defendants,  in  1810.  The  defendants  ought  to  account 
for  the  64,825  dollars  and  87  cents,  and  not  merely  for  the 
21,798  dollars  and  78  cents.  In  this  respect,  the  decree 
ought  to  be  corrected ;  but  in  all  other  respects,  it  must  re- 
main as  it  is,  and  none  of  the  objections  taken  to  it,  in  the 
petition  for  a  rehearing,  are  well  founded. 

Decree  accordingly. 
472 


CASES  IN  CHANCERY.  61* 

1818. 

WHIPPLE 

*WHIPPLE  and  Wife  against  LANSING  AND  VAN  RENS-     LAKMXQ 

SELAER. 

[Followed,  8  Paige  465.] 

A  defendant  who  u  charged  by  the  plaintiff  as  fraudulently  colluding 
with  his  co-defendant,  in  regard  to  the  transactions  sought  to  be  im- 
peached, cannot  be  a  witness  for  his  co-defendant ;  especially  when 
he  has  an  interest  in  the  cause,  arising  from  his  liability  for  costs,  and 
his  ultimate  responsibility,  if  the  charge  is  proved.  And  the  cause, 
after  issue,  having  been  referred  to  a  master,  by  consent,  to  take  an 
account,  the  witness  cannot  be  allowed  to  be  examined  before  the 
master,  even  de  bene  esse. 

THE  bill  stated  that  the  father  of  the  plaintiff's  wife  died  Nailer  so 
intestate,  the  28th  of  September,  1805,  leaving  her  his  sole 
heir,  and  widow,  since  deceased.  That  the  plaintiff  and  his 
wife  were  married  in  June,  1817.  That  the  intestate  left  a 
considerable  personal  estate,  more  than  sufficient  to  pay  all 
his  debts,  and  died  seised  of  a  large  real  estate.  That  on 
the  28th  of  October,  1805,  the  defendant  Abraham  A.  Lan- 
sing administered  on  the  estate,  and  on  the  28th  of  June, 
1806,  upon  false  representations  of  the  sums  due,  *and  which  [  *  613  ] 
had  been  paid  and  received,  and  of  the  amount  of  the  debts 
of  the  intestate,  &c.,  fraudulentry  procured .  an  order  from 
the  surrogate  to  sell  the  real  estate ;  and  exhibited  an  account 
to  the  surrogate,  in  which  he  charged  as  paid  to  the  defend- 
ant Philip  P.  Van  Rensselaer,  for  moneys  due  to  the  firm  of 
Lansing  and  Van  Rensselaer,  the  sum  of  1,706  dollars,  &c., 
which  the  defendant  L.  knew  was  not  due  or  paid,  and  that 
the  account  was  false,  &c.  That  the  account  was  fraud 
ulently  made  by  L.,  in  collusion  with  the  defendant  V.  R., 
who  was  afterwards  appointed  the  guardian  of  the  plaintiff's 
wife,  and  has  refused  to  render  an  account,  &c. 

The  defendants  put  in  their  joint  and  several  answer,  to 
which  there  was  a  replication.  An  order  of  reference  to  a 
master  was  entered  by  consent,  to  state  an  account  between 
the  plaintiffs  and  the  defendant  L.,  as  administrator,  and 
between  the  plaintiffs  and  the  defendant  V.  R.,  as  guardian. 

Petition  of  the  defendant  L.  for  leave  to  examine  the 
defendant  V.  R.  before  the  master,  as  a  witness  for  him, 
to  prove  the  assets  which  had  come  to  his  hands,  and  their 
application. 

Van  Vechlen,  in  support  of  the  petition. 

W.  Duer  and  H.  Bletcker,  contra. 

VOL.  III.  60  473 


iJ13  CASES  IN  CHANCERY. 

1818.  THE   CHANCELLOR.      The    defendant   Van  Rensselaer  is 

^*^-^~*^s  charged  in  the  bill  as  a  particeps  criminis  to  the  transactions, 
WHIPPLE  or  some  of  them,  sought  to  be  impeached.  He  is  called  to 
LANSING  swear  to  the  truth  and  to  thfc  justness  of  the  charges  made 
on  his  part,  and  to  the  payments  made  on  the  part  of  the 
other  defendant,  and  which  are  charged  as  being  the  result 
entirely  of  a  fraudulent  collusion.  If  the  charge  be  true, 
the  defendant  Van  Rensselaer  must  not  only  answer  in  costs, 
but  he  loses  the  advantage  of  the  settlement  *he  has  made 
with  the  other  defendant,  and  he  will  be  ultimately  respon- 
sible for  the  money.  He  is,  therefore,  upon  the  face  of  the 
pleadings,  not  only  a  particeps  criminis,  but  he  has  an  interest 
in  the  result  of  the  cause.  He  is  clearly,  therefore,  an  in- 
competent witness.  The  decisions  in  Dixon  v.  Parker, 
(2  Vesey,  219.)  Bridgman  v.  Green,  (2  Vesey,  629.)  and 
Downing  v.  Toivnsend,  (Amb.  592.)  are  to  this  effect.  So, 
in  Murray  v.  Shadwell,  (2  Vesey  and  Bea.  401.)  in  which 
Lord  Eldon  ruled,  that  one  co-defendant  may  be  examined 
before  hearing,  for  another,  if  not  interested  in  the  matter  to 
which  he  is  to  be  examined,  it  was  agreed,  that  if  it  turns 
out  that  he  has  an  interest  in  those  matters,  by  reason  of  his 
interest  in  the  result,  his  deposition  cannot  be  read. 

It  would  be  dangerous  to  make  an  experiment  in  this  case, 
by  an  order  de  bene  esse.  The  cause  after  issue,  and  without 
hearing,  was,  by  consent,  referred ;  and  if  the  master  was  to 
take  the  testimony,  it  would  be  difficult  to  determine  on  its 
effect  and  competence  afterwards.  It  is  not  like  the  case  of 
testimony  taken  before  hearing,  which  can  be  entirely  and 
safely  suppressed,  when  the  hearing  comes  on,  if  it  should 
be  judged  inadmissible. 

Motion  denied. 
474 


CASES  IN  CHANCERY  614 

1S18. 

BARROW 

BARROW  and   others,  Assignees  of  P^IOR,  against  RHi<Ji.*M>. 
RHINELANDER.  £n 

[Keversed  iu  part,  17  Johns.  538.] 

Whore  a  party  produces  and  examines  a  witness  before  the  master,  but 
neglects  to  inquire  as  to  a  particular  item  in  the  account,  which  the 
witness  alone  could  explain,  he  cannot,  afterwards,  except  to  the  re- 
port of  the  master  as  incorrect,  in  regard  to  such  item. 

Where  JR.,  while  a  confidential  clerk  of  P.,  took  bonds  and  notes  be- 
longing to  P.,  and  without  his  knowledge  or  permission,  and  which 
he  refused  to  return,  or  give  an  account  of,  he  was  held  answerable 
for  the  whole  of  the  *principal  and  interest  due  on  the  securities,  with-  [  *  61  5  . 
out  any  regard  to  his  diligence  in  obtaining  payment,  or  the  subse- 
quent solvency  of  the  makers  ;  it  appearing  that  the  bonds  and  notes 
were  good  about  the  time  they  were  so  taken  by  R. 

A.  person  who  receives  bonds  and  notes  as  collateral  security  for  a  debt, 
is  bound  to  use  due  diligence ;  and  if  they  are  afterwards  lost,  through 
his  negligence,  by  the  insolvency  of  the  makers,  he  is  chargeable  with 
the  amount. 

Where  R.  received  a  bond  from  P.  as  a  collateral  security  for  a  debt, 
and  the  obligor  offered  to  pay  him  the  amount  of  the  bond  in  land,  at 
a  certain  price,  as  the  only  means  of  payment  in  his  power,  which  R. 
refused  to  accept,  although  requested  to  do  so  by  P.,  and  the  obligor, 
afterwards,  became  insolvent,  whereby  the  bond  was  wholly  lost,  R. 
was  held  chargeable  with  the  amount  of  the  value  of  the  land  so 
offered  him  in  payment,  and  which  he  unreasonably  refused  to 
accept. 

PURSUANT  to  the  decretal  order  entered  in  this  October  3,  a 
cause,  on  the  29th  of  September,  1815,  (for  which,  as  well  6b'er™d 
as  the  facts  of  the  case,  and  the  opinion  of  the  Court,  see 
S.  C.  vol.  1.  p.  550.  557.  559.)  the  master  to  whom  the 
reference  was  made,  on  the  1st  of  June  last,  reported  a  bal- 
ance of  principal  and  interest  due  from  the  defendant  to  the 
plaintiffs,  of  31,894  dollars  and  52  cents  ;  and  that,  in  taking 
the  account,  he  had  credited  the  defendant  with  all  moneys 
loaned  by  him  to  Prior,  and  paid  on  his  account,  by  his  re- 
quest, and  all  money  which  Prior  received  from  others, 
belonging  to  the  defendant,  between  the  29th  of  November, 
1790,  and  the  4th  of  July,  1801 ;  that  he  had,  also,  cred- 
ited the  defendant  with  an  allowance  for  wages,  at  the  rate 
of  500  dollars  a  year,  &c.,  and  with  the  sums  he  reasonably 
paid  for  costs  and  charges  in  collecting  the  moneys  due  on 
the  securities  mentioned  in  the  pleadings,  and  with  the  sums 
he  paid  for  taxes  on  the  shares,  and  on  the  lands  in  Clinton ; 
that  he  had  ascertained  that  the  defendant  received  divers 
sums  of  money  from  Prior,  and  also  from  his  property  and 
debtors,  before  he  became  a  bankrupt,  with  which  he  had 
charged  the  defendant ;  and,  also,  that  the  defendant  had 

475 


C-JO*  CASES  IN  CHANCERY. 

1818.  received  divers  sums  of  money  from  the  property  and  debtors 
^^~ ^s~**~/  of  the  plaintiffs,  as  assignees,  with  which  he  had  also  charged 
BARROW  *him ;  that  he  had  ascertained  that  Prior  had  paid  divers 
RHINE'LASI--  sums  °f  money  for,  and  on  account  of  the  defendant,  with 
ER.  which  he  had  charged  him ;  and  that  Prior  sold  to  the  de- 
fendant goods,  and  that  the  defendant  took  goods  out  of 
the  store  of  Prior,  between  the  periods  aforesaid,  with  which 
he  had  charged  him ;  and  that  the  defendant  took  from 
Prior,  before  his  bankruptcy,  without  permission,  certain 
securities  for  money,  with  the  principal  sums  of  which  he 
had  charged  the  defendant ;  and  that  the  defendant  received 
certain  sums  of  money  on  the  securities  so  taken  by  him, 
with  which  he  was  charged ;  and  that  the  defendant  refused 
to  deliver  to  Prior,  on  demand,  for  collection,  James  Hulberfs 
bond  assigned  to  him  by  Prior ;  but  this  case  was  provided 
for  in  the  stipulation.  That  he  had  charged  the  defendant 
with  the  divers  sums  received  on  the  securities  assigned  to 
him  by  Prior.  That  the  amount  of  the  principal  and  interest 
of  the  securities  received  from  Prior,  by  the  defendant,  and 
lost  by  his  negligence,  appeared  in  the  schedule  annexed  to 
the  report,  and  with  this  amount  the  defendant  was  charged. 
That  the  defendant  had  redelivered  to  the  plaintiffs  the  cer> 
tificates  for  the  Inland  Lock  Navigation  shares.  That  the 
lands  in  Clinton  county,  when  they  were  conveyed  to  Prior, 
were  undivided;  but  had  since  been  divided,  and  the  de- 
fendant had  a  title  to  a  share  in  severally  which  belonged  to 
Prior,  which  the  defendant  offered  to  reconvey,  free  of  en- 
cumbrances. That  the  defendant  can  reconvey  44-89th 
parts  of  the  population  lands  in  Pennsylvania,  and  the  con- 
tracts, bonds  and  mortgages,  being  his  proportion,  and  is 
willing  to  reconvey,  on  being  indemnified  against  his  covenant 
and  receipt. 

Various  exceptions  were  taken  to  the  report  of  the  master  , 
six  exceptions  were  on  the  part  of  the  defendant,  which  were 
argued  in  October  last,  and  are  sufficiently  stated  in  the 
opinion  of  the  Court. 

[  *  617  ]  *Riggs  and  Boyd,  for  the  plaintiffs. 

Wells  and  T.  A.  Emmet,  for  the  defendant. 

THE  CHANCELLOR.  1.  The  first  exception  is,  that  the 
master  has  not  credited  the  defendant  with  1,250  dollars, 
which  he  claims  to  be  credited  for,  on  the  1st  of  May,  1793, 
as  the  amount  of  money  which  Prior  assumed  to  pay  him, 
on  account  of  a  bond  executed  by  Andrew  Underhill  to  the 
defendant. 
476 


CASES  LN   CHANCERY.  6H 

The  evidence  produced  by  the  defendant,  is  the  exhibit,        1813 
(M.)  being  an  account  from  1793  to  1795,  in  which  the  de-  ^^-^~+^ 
fendant  is  charged  with  sundry  items,  and  on  the  credit  side      BARROW 
is  an  entry  in  these  words,  under  the  date  of  the  1st  of  May,    R    NV-L 
1792,   (though   evidently  intended  for  1793,)  "by  Andrew         'ER 
Underhill,  for  so  much  I  assumed  to  pay,  500  pounds;"  at 
the  bottom  of  the  account,  Prior,  by  a  certificate  under  his 
own  hand,  speaks  of  "  the  settlement  of  the  above  account." 

The  answer  of  the  defendant  states  the  500  pounds  to 
have  been  a  loan  to  Prior.  The  answer  and  the  books  do 
not  agree  with  the  above  account.  But  though  there  is 
confusion  as  to  this  charge,  yet  one  fact  must  silence  all  crit- 
icism. The  defendant,  before  the  master,  claimed  this  debt 
of  500  pounds,  as  a  sum  assumed  by  Prior  for  Underhill. 
The  plaintiffs  examined  Prior  before  the  master,  but  not  as 
to  this  charge.  He,  and  he  only,  could  have  explained  this 
item  in  the  settled  account,  if  it  was  not  correct  as  it  there 
stood.  By  omitting  to  examine  him  on  this  point,  the  pre- 
sumption is  irresistible,  that  the  account  on  this  head  was 
correct.  The  exception  must  be  allowed. 

2.  3.  The  second  exception  is,  that  the  master  had  re- 
ported that  he  had  ascertained  that  the  defendant  took  from 
Prior,  before  his  bankruptcy,  without  permission,  certain 
securities  for  the  payment  of  money ;  and  the  third  exception 
is,  that  the  master  had  ascertained  that  the  amount  *of  prin-  [  *  618  j 
cipal  and  interest  of  certain  of  the  securities  received  from 
Prior,  by  the  defendant,  had  been  lost  by  the  negligence, 
default,  and  want  of  due  diligence  of  the  defendant,  in 
collecting  or  attempting  to  collect  the  same. 

The  master  was  directed  by  a  decretal  order,  to  charge 
the  defendant  with  the  amount  due  on  such  securities,  for 
moneys,  as  were  taken  by  the  defendant  from  Prior,  before 
his  bankruptcy,  without  permission ;  and,  also,  with  the 
amount  of  such  securities  for  money  received  from  Prior, 
by  the  defendant,  as  were  lost  by  the  negligence,  default,  or 
want  of  due  diligence  of  the  defendant,  in  collecting  or 
attempting  to  collect  the  same. 

There  can  be  no  possible  objection  to  the  reasonableness 
of  the  order,  and  these  two  exceptions  go  to  the  fact,  that 
the  master  reported  that  he  had  ascertained  that  such  occur- 
rences had  taken  place.  The  master  was  bound  by  the  order 
to  make  the  inquiry,  and  to  report  the  truth ;  and  if  any 
grievance  exists  in  the  case,  it  can  only  be  as  to  the  appli- 
cation of  the  discovery.  The  discovery  and  the  report  would 
otherwise  be  perfectly  harmless.  To  see  the  application  of 
the  inquiry  and  of  the  facts  so  ascertained,  we  must  have 
recourse  to  the  4th  and  6th  e^pntions. 

477 


613  CASES  IN  CHANCERY. 

1S18.  4.  The  4th  exception  is,  that  the  master  had  charged  the 

v^x-s/-*^/  defendant,  on  the  6th  of  September,  1796,  with  190  dollars 
BARROW      and  4  cents,  as  and  for  the  balance  due  on  that  day,  on 
Seaman  and  Averts  note  ;  and  the 

r ».  HIM'.  LAND-  ,  •••''»  i  ill  i    i   • 

KR.  6.  oth  exception  is,  that  the  master  had  charged  him  with 

81  dollars  and  44  cents,  as  and  for  the  amount  of  David 
Barnuni's  note,  and  had  charged  him  as  of  the  date  of  the 
6th  of  October,  1801. 

The  bill  charged  the  defendant  with  a  breach  of  trust, 
inasmuch  as  that,  having  possession  of  the  valuable  papers 
of  Prior,  he  had,  without  the  knowledge  or  consent  of  Prior, 
taken  several  bonds  and  promissory  notes  for  the  payment 
of  money,  and  which  had  never  been  assigned  or  delivered 
!  519  ]  to  him,  and  which  he  afterwards  pretended  to  *hold  as  a  col- 
lateral security  for  the  payment  of  money.  The  answer  to 
this  part  of  the  bill  admits  that  while  he  was  in  the  service 
of  Prior,  the  bonds,  notes  and  other  valuable  papers  of 
Prior  were  kept  in  an  iron  chest,  and  that  he,  at  sundry 
times,  took  from  among  those  papers  certain  securities  for 
the  payment  of  money,  of  which  the  notes  in  question  were 
a  part.  But  the  defendant  avers  that  they  were  taken  with 
the  express  permission  of  Prior,  and  he  denies  that  he  took 
from  among  those  papers  any  bond  or  note  whatever  belong- 
ing to  Prior,  without  his  previous  consent  or  permission. 

Here  the  parties  were  completely  at  issue  upon  this  point 
of  fact. 

The  proof  in  support  of  the  charge  consists  of  the  testi 
mony  of  witnesses,  corroborated  by  circumstances. 

Edmund  Prior,  the  bankrupt  himself,  testifies,  that  the 
notes  in  question  were  taken  by  the  defendant  from  his 
possession,  without  his  knowledge  or  consent.  He  says, 
that  they  were  never  assigned,  and  he  missed  them  in  March, 
1801,  though  he  concludes  that  they  were  taken  some  time 
>n  the  year  1800.  He  says  further,  that  the  defendant  re- 
fused to  give  him  any  account  of  the  securities  so  taken. 

William  Prior,  another  witness,  testifies,  that,  to  his  knowl 
edge,  the  defendant  took  away  a  number  of  notes  deposited 
in  the  desk  of  Prior,  and  that  the  notes  were  missing  when 
the  defendant  left  the  service  of  Prior.  That  by  the  di- 
rection of  Prior,  he  called  on  the  defendant  for  a  list  of 
those  securities,  and  he  refused  to  give  it ;  but  the  witness 
having  a  list  of  the  missing  notes,  and  mentioning  them,  the 
defendant  confessed  that  the  greater  part  of  them  were  in 
his  possession. 

This  positive  testimony,  accompanied  with  this  refusal, 
outweighs  the  answer;  especially  when  we  consider  the 
478 


CASES  IN  CHANCERY.  619 

want  of  credit,  which  the  whole  view  of  the  case  shows,  i?        ]S18. 
deservedly  attached  to  many  parts  of  this  answer.  *~^~~^~*+~/ 

It  is  admitted,  that  Prior  assigned  to  the  defendant  se-      BARROW 
curities  *to  the  value  of  upwards  of  16,000  dollars,  and  that   RHINELASD. 
these  notes  were  not  assigned,  or  endorsed :  and  why  were          ER. 
not  these  notes  regularly  assigned,  if  intended  to  be  delivered  ?       [  *  620  j 
The  omission  affords,  of  itself,  a  strong  ground  of  inference, 
that  they  were  taken  without  permission. 

I  am  entirely  satisfied  with  the  conclusion  drawn  by  the 
master,  that  these  notes  were  taken  by  the  defendant  from 
the  possession  of  Prior,  without  his  knowledge  or  consent. 
It  being  admitted,  and  it  is  indeed  abundantly  proved,  that 
the  makers  were  solvent  on  the  4th  of  July,  1801,  so  as  to 
take  the  case  out  of  the  agreement  of  the  solicitors,  the  de- 
fendant has  made  those  notes  his  own  by  such  a  fraudulent 
appropriation,  and  he  is  justly  chargeable  with  the  amount 
of  them. 

If  the  case  turned  on  the  point  of  negligence,  or  a  want 
of  due  diligence  in  the  collection  of  the  notes,  every  pre- 
sumption ought,  of  course,  to  be  made  against  the  defendant. 
In  odium  spoliaioris  omnia  pr&sumuntur. 

The  testimony  is  decisive,  that  this  act  of  spoliation  caused 
the  loss  of  Barnum's  note.  Prior  testifies,  that  when  that 
note  fell  due,  (which  was  in  the  autumn  of  1801,)  Barnum 
called  upon  him  to  pay  it,  and  as  he  had  not  the  note  in  his 
possession,  Barnum  refused  to  pay  it,  and  went  away,  and 
has  since  become  insolvent.  The  defendant  states  in  his 
answer,  that  in  1802,  he  frequently  applied  by  letter  to 
Barnum,  for  the  payment  of  the  note,  and  that  in  1801,  he 
made  a  personal  demand  upon  Barnum,  who  refused  to  pay, 
because  Prior  had  given  him  notice  not  to  pay.  Barnum, 
upon  his  examination,  confirms  the  testimony  of  Prior,  and 
contradicts  the  answer  of  the  defendant.  He  has  no  recol- 
lection that  the  defendant  ever  applied  to  him  personally  for 
payment,  or  that  Prior  ever  forbade  or  requested  him  not  to 
pay  the  note  to  the  holder.  The  tender,  by  the  defendant, 
of  these  unassigned  and  unendorsed  notes  to  one  of  the  as- 
signees, on  the  28th  of  * April,  1802,  was,  therefore,  an  act  [  *  621  ] 
perfectly  and  most  justly  unavailing. 

As  to  the  note  of  Seaman  and  Avery,  the  testimony  of 
Prior  would  lead  us  to  conclude,  that  the  money  was  lost 
from  the  want  of  a  prosecution  in  due  season.  The  letter 
rf  Amasa  Paine  to  the  defendant,  in  1804,  shows  that  Avery 
was  then  dead,  and  died  insolvent,  and  that  nothing  was  to 
be  obtained  on  the  note,  and  the  defendant  does  not  appear 
to  have  made  any  effort  towards  the  collection  of  this  note 

479 


621 


CASES  IN  CHANCERY. 


1818. 


BARROW 
v. 

RlllNKLAND- 
ER. 


[*622] 


until  as  late  as  1804.     He  was  properly  chargeable  with  the 
amount  of  those  notes. 

The  2d,  3d,  4th,  and  6th  exceptions  are,  consequently, 
overruled. 

5.  The  5th  exception  is,  that  the  defendant  is  charged,  on 
the  18th  of  December,  1798,  with  6,114  dollars,  as  and  fir 
the  balance  due  on  Samuel  Beman's  bond,  assigned  to  him 
by  Prior,  and  which  bore  date  on  the  llth  of  April,  1795. 

The  bond  of  Beman,  here  referred  to,  was  for  2,055  pounds, 
and  was  assigned  to  the  defendant  on  the  4th  of  February, 
1799,  as  a  collateral  security  for  the  debt  due  from  Prior 
to  him. 

It  is  in  proof,  by  the  testimony  of  Beman  himself,  that  in 
the  summer  of  1802,  Beman,  by  his  agent,  M.  Wheeler,  made 
an  offer  to  the  defendant  of  a  tract  of  land  in  the  town  of 
Hampton,  in  the  county  of  Washington,  containing  1,338 
acres,  then  worth  4  dollars  an  acre,  towards  a  satisfaction  of 
the  bond,  and  that  the  defendant  might  take  the  land  at  a  fair 
valuation.  This  offer  the  defendant  rejected.  Wheeler,  the 
agent,  confirms  this  fact,  in  all  its  essential  parts,  and  he 
says,  that  he  further  informed  the  defendant,  that  Beman 
said,  he  should  be  unable  to  pay  the  debt  in  any  other  way. 
It  is  also  in  proof,  that  Williams  was  employed  by  Beman  to 
make  the  same  offer,  and  Williams,  who  is  now  dead,  told 
Beman  he  had  made  the  offer,  and  that  it  was  rejected. 
Williams  had  ^further  offered  to  release,  as  far  as  respected 
that  land,  the  lien  of  a  judgment  which  he  owned,  and  which 
was  against  Beman,  and  bound  the  land,  provided  the  de- 
fendant would  accept  that  land  in  payment  of  the  bond. 
The  offer,  with  this  additional  advantage,  was  still  rejected. 
It  is  further  in  proof,  that  Williams  applied  personally,  on 
behalf  of  Beman,  to  Prior,  and  offered  to  settle  the  bond, 
by  giving  the  land,  accompanied  with  a  release  of  his  judg- 
ment upon  it,  and  that  Prior,  deeming  the  offer  liberal, 
consented  to  accept  of  it.  Prior  says,  that  he,  then,  with 
tiie  assent  of  one  of  the  assignees,  proposed  to  the  defend- 
ant, that  if  he  would  agree  to  the  offer,  and  accept  the  land 
in  satisfaction  of  the  bond,  the  assignees  would  indemnify 
him  against  any  loss  upon  a  fair  sale  of  the  land.  The  de- 
fendant still  refused,  and  the  consequence  was,  that  the  whole 
of  the  land  was  sold  under  the  judgment,  and  the  debt  due 
from  Beman  totally  lost.  It  is  further  in  proof,  that  in  the 
spring  of  1802,  Beman  offered  to  the  defendant  3,000  dollars 
in  land,  and  2,000  dollars  in  obligations,  upon  the  bond,  and 
this  offer  was  also  rejected. 

The  point  is  now,  whether  the  defendant,  under  the  peon 
480 


CASES  IN  CHANCERY. 

liar  circumstances  of  the  case,  ought  not  to  be  responsible        181 
for  the  value  of  an  offer  which  was  so  perversely  and  uncon- 
scientiously  rejected,  by  means  of  which  refusal,  the  whole      BARROW 

debt  has  been  lost. 

•    •  i          i        i    f      i  -i         /•       i  KHINELAND- 

I  am  of  opinion,  that  the  defendant  was  guilty  of  a  breach          ER. 
of  trust  in  the  relation  under  which  he  stood  to  Prior  and 
his  assignees.     He  was  bound  to  exercise  a  reasonable  and 
equitable  discretion,  instead  of  which,  his  conduct,  in  this 
case,  was  tyrannical,  oppressive,  and  unjust. 

The  defendant  had,  at  the  time,  extravagant  security  for 
what  was  due  him,  independent  of  this  bond.  He  had  a 
mortgage  on  a  house  and  lot  in  New-York,  and  a  deed  for 
lands  in  Clinton  county,  and  population  snares,  and  other 
personal  securities,  assigned  or  assumed,  to  the  amount  of 
upwards  of  20,000  dollars,  for  a  debt,  not  exceeding  in  *the  [  *  623 
whole,  one  fifth  of  the  sum  total  of  that  accumulated  secu- 
rity ;  and  yet,  with  this  abundant  security,  he  would  accept 
of  nothing  short  of  the  uttermost  farthing  in  money,  for 
Beman's  bond,  though  he  was  assured  by  the  debtor,  that  the 
offer  he  made  was  the  only  means  of  payment  in  his  power, 
and  though  he  was  solicited  by  Prior,  and  by  Prior's  assign- 
ees, in  the  shape  of  a  proposition,  calculated  to  subdue  the 
most  obstinate  perverseness. 

The  defendant  had  uniformly  endeavored  to  involve  his 
claims  upon  Prior,  and  the  amount  of  his  security,  in  mys- 
tery and  difficulty,  the  better  to  conceal  the  mischiefs  of  his 
avarice.  He  was  repeatedly  requested  by  Prior  to  make  an 
account  of  his  demands,  and  of  the  securities  of  Prior 
which  he  held,  and  he  as  repeatedly  refused.  At  one  time, 
he  said,  he  would  not,  because  "  there  were  certain  circum- 
stances attached  to  the  business  that  would  render  it  unsafe 
for  him  to  render  such  an  account  as  might  endanger  the 
security  of  his  bonds."  For  the  same  reason,  he  refused  to 
give  a  list  of  the  securities.  At  last,  he  appeared  to  yield  to 
importunity,  but  said,  that  he  would  not  be  able  to  make 
out  any  such  account,  unless  he  had  the  privilege  of  using 
the  books  of  Prior,  and  to  which  Prior  assented.  He  then 
undertook  to  make  out  the  account,  and  consumed  the 
greater  part  of  five  months  in  preparing  it.  He  repeatedly 
refused  to  make  out  a  list  of  the  securities  of  Prior  in  his 
hands,  until,  at  last,  by  the  particular  desire  of  Robert  Bowne 
ind  Wm.  Prior,  he  made  a  partial  list. 

The  same  unreasonable  and  oppressive  spirit,  which  mani- 
fested itself  in  this  conduct,  seems  to  have  pervaded  all  the 
transactions  of  the  defendant  with  Prior,  as  disclosed  in  this 
case.  The  defendant  dealt  oppressively  and  fraudulently 
with  Prior  from  the  beginning;  and  the  rejection  of  the 

VOL.  III.  61  481 


624*  CASES  IN  CHANCERY. 

offers  of  Beman,  pressed  as  they  were  by  the  most  persua- 
sive  motives,  was  only  a  continuation  of  the  abuse  of  trust. 
BARROW  *As  the  defendant  lost  the  debt  of  Beman  by  his  refusal 

*°  close  with  any  offer  that  was  made ;  and  as  his  conduct, 
in  this  respect,  was  a  breach  of  duty  resulting  from  the  rela- 
tion in  which  he  stood  with  Prior,  he  ought  to  be  held  re- 
sponsible for  the  value  of  the  property  so  rejected  and  lost. 

It  is  said,  however,  that  Beman  was  insolvent  on  the  4th 
of  July,  1801,  and  that  this  brings  the  case  within  the  agree- 
ment of  the  counsel. 

I  should  doubt,  very  much,  whether  a  case  of  this  kind 
fell  within  the  meaning  of  that  stipulation.  The  provision 
was  intended  to  meet  the  charge  of  negligence  in  prosecution, 
and  to  afford  a  test  of  the  absolute  inability  of  the  party  to 
pay  at  a  given  time.  But  here  the  debtor  absolutely  offered 
payment  in  land,  and  the  question  of  solvency  or  insolvency 
does  not  arise.  There  was  no  objection  to  the  title  offered 
by  Beman,  accompanied  with  the  offer  of  the  release  of  the 
judgment.  The  refusal  of  the  defendant  applied  to  the 
subject  offered,  and  not  to  its  value  or  title.  We  must  as- 
sume both  of  them  to  be  as  they  were  stated.  If  it  were 
now  a  question  as  to  the  solvency  of  Beman,  we  have  his 
testimony,  that  his  property  was  sufficient,  on  the  4th  of  July, 
1801,  to  pay  all  his  debts,  and  that  it  was  the  subsequent 
forced  sales  of  his  property  which  rendered  him  insolvent. 
He  says,  that  in  calculating  on  his  solvency  in  1801,  he  did 
not  include  the  partnership  debts  of  the  house  of  Scott, 
Beman,  and  Wheeler,  because,  he  says,  that  Scott  had  made 
such  arrangements  with  the  creditors,  that  he  was  exonerated 
from  the  debts  of  the  house. 

It  is  said,  again,  that  the  bond  in  question  was  merged  in 
a  subsequent  judgment  bond  which  Beman  gave  to  Prior,  in 
1797,  as  a  trustee  for  several  creditors,  and  in  which  judg- 
ment bond  the  existing  debt  to  Prior  was  included.  On  this 
last  bond  a  judgment  was  entered.  But  in  answer  to  this 
[  *  625  ]  objection,  it  is  to  be  observed,  that  all  *the  parties  concerned 
considered  the  defendant  as  having  the  absolute  control  of 
the  Beman  debt,  and  all  acted  upon  that  assumption.  The 
equity  of  the  case  is  not,  therefore,  affected  by  the  subsequent 
bond  and  judgment.  One  bond  will  not  extinguish  another, 
even  at  law ;  and  whether  the  entry  of  judgment,  on  the 
second  bond,  would  do  so  at  law,  under  the  circumstances 
of  this  case,  need  not  be  discussed.  Every  person  that  had 
an  interest  in  the  transaction,  the  defendant,  and  Beman  and 
Prior,  and  the  assignees  of  Prior,  all  considered  the  first 
bond,  in  the  hands  of  the  defendant,  as  a  subsisting  debt 
This  was  the  universal  understanding,  and  the  technical  ob 
482 


CASES  IN  CHANCERY.  625 

jection  cannot  be  listened  to  here,  whatever  force  might  be        1818. 
attached  to  it  in  a  Court  of  law:     Prior  says,  that  the  judg-  ^*^^~+^s 
ment  bond  was  taken  in  his  store  when  the  defendant  was      BAKROW 
with  him,  and  he  believed  the  defendant  knew  it,  and  that  it    RHINE'LAKD 
was  only  taken  as  a  farther  security.     If  the  defendant  was          ER. 
considered  by  all  parties  as  having  the   entire   control  of 
jBeman's  debt,  by  means  of  the  first  judgment,  Prior  could 
not  deal  with  Beman,  in  respect  to  the  offer  of  the  lands, 
without  the  privity  and  consent  of  the  defendant.     If  he  had 
attempted  to  extinguish  the  debt  without  the  knowledge  of 
the  defendant,  it  would  have  been  dealing  treacherously  with 
the  defendant,  and  contrary  to  the  act  of  assignment  of  the 
original  bond.     This  assignment,  being  made  a  long  time 
subsequent  to  the  judgment  bond,  was  an  affirmance  by 
Prior  of  the  subsisting  force  of  the  first  bond.     Nor  could 
Prior  accept  of  the  offer  of  the  lands,  by  reason  of  another 
insuperable  objection.     He  was,  at  the  time  of  the  offer,  a 
declared  bankrupt,  and  his  property  had  been  assigned  to 
the  present  plaintiffs.     It  was  for  that  reason   that  Prior 
communicated  the  offer  to  them,  and  obtained  the  consent 
of  one  of  them  (and  which  was  sufficient  for  the  defendant 
to  act  upon)  to  the  composition  which  was  proposed. 

*The  defendant  never  put  his  objection  to  receiving  the  [  *  626  ] 
lands  upon  the  ground  of  the  want  of  a  sufficient  assent  on 
the  part  of  the  assignees  of  Prior.  The  presumption  of  a 
competent  assent  is  irresistible,  from  the  testimony  of  Prior, 
and  from  the  conduct  of  the  defendant.  His  conduct 
amounted  to  an  admission  of  such  consent. 

The  letter  of  Prior  to  Beman,  in  March,  1802,  has  been 
mentioned  as  evidence  that  the  original  bond  was  not  deemed 
valid.  But  that  letter  cannot  be  permitted  to  affect  the  case. 
It  was  written  in  answer  to  a  letter  from  Beman,  complaining 
of  a  suit,  in  Prior's  name,  on  the  bond,  and  Prior  informs 
him  that  the  suit  was  without  his  knowledge,  and  that  the 
defendant  would  not  give  him  any  satisfaction  as  to  his  affairs, 
and  that  he  could  not  tell  on  what  ground  the  bond  was 
assigned  to  the  defendant.  Regretting  that  Beman  should 
be  in  a  situation  so  embarrassing,  he  suggests,  whether  Beman 
might  not  plead,  in  bar  of  the  suit,  the  judgment  bond,  as 
being  of  later  and  higher  authority.  This  letter  was  evidently 
written  in  a  moment  of  despair,  arising  from  a  view  of  his 
injuries  and  misfortunes.  It  was  on  the  very  eve  of  Prior's 
bankruptcy,  and  the  suggestion  can  have  no  effect  on  the 
uniform  tenor  of  his  acts,  both  prior  and  subsequent  to 
that  time. 

Upon  the  whole,  as  the  defendant  obstinately  refused 
every  proposition,  and  kept  jhe  security  to  himself,  until 

483 


G26  CASES  IN  CHANCERY. 

1818.       l-h6  debt  was  lost,  I  think  he  is  not  now  to  be  heard  to  say 

v^^— v^^_x  /  am  not  in  fault,  or  I  am  not  responsible  for  so  great  a  wastt 

BARROW      upon  the  estate.     The  admission  of  such  a  plea  would  be 

RHINELAND-   giv^ng  success  and  security  to  the  most  aggravated  and  obsti- 

ER.          nate  violation  of  the  duties  of  a  trustee,  and  of  the  plainest 

principles  of  equity  and  good  conscience. 

I  shall,  consequently,  give  effect  to  the  most  essential  part 
of  the  master's  report  on  this  point,  but  shall  modify  it  so  far 
as  to  charge  the  defendant  only  with  the  value  of  the  lands 
tendered  in  the  summer  or  autumn  of  1802.  The  value,  as 
[  *  627  ]  proved  by  the  testimony  of  Beman,  was  *5,325  dollars,  and 
that  sum,  as  of  the  1st  of  September,  1802,  is  to  be  substi- 
tuted to  the  sum  in  the  report  of  6,114  dollars,  as  of  the 
18th  of  December,  1798. 

As  to  the  costs  of  the  exceptions,  the  defendant  will  be 
entitled  to  costs  of  the  exceptions  taken  on  the  part  of  the 
plaintiffs  and  overruled  •;  and  of  the  first  exception,  taken  on 
his  part  and  allowed.  The  plaintiffs  will  be  entitled  to  the 
costs  of  the  second,  third,  fourth,  and  sixth  exceptions  over- 
ruled, and  neither  party  will  be  entitled  to  any  costs  for  the 
fifth  exception,  which  has  been  thus  modified. 

Decree  ace    dingly. 
484 


CASES  IN  CHANCERY. 


1818. 


MASON 

MASON  against  ROOSEVELT  and  others.  ROOSEVELT. 

Dn  a  reference  to  a  master,  aged  witnesses  residing  in  a  distant  part  of 
the  state,  may  be  examined  on  interrogatories,  before  a  master  in  the 
county  where  they  reside,  under  the  directions  of  the  master  before 
whom  the  reference  is  pending ;  and  examinations  so  taken  may  be 
used  on  the  reference,  saving  all  just  exceptions. 

J.  EMOTT,  for  the  defendants,  on  an  affidavit,  stating  December^. 
that  two  witnesses  were  aged,  and  could  not,  without  great 
trouble,  inconvenience,  and  expense,  be  taken  before  the 
master,  who  resided  in  a  distant  part  of  the  state,  as  wit- 
nesses, on  a  reference  pending  before  him,  moved  for  leave 
to  take  their  examinations  before  a  master,  in  the  county 
where  the  witnesses  resided. 

The  Court  granted  the  motion ;  and  ordered,  that  these 
witnesses  be  examined  before  a  master  in  the  county  in 
which  they  reside,  on  interrogatories  to  be  approved  by 
*the  master  before  whom  the  reference  is  pending,  and  on  [  *  628  ] 
giving  such  notice  as  the  said  master  may  direct ;  and  that 
the  defendants  shall  have  liberty  to  use  such  examinations 
on  the  reference,  saving  all  just  exceptions. 


END    OF    THE    CASES. 

485 


[629] 


629]  *ORDERS    OF    COURT 


June  20th,  1816. 

Ordered,  That  whenever  a  defendant  shall  cause  his 
appearance  to  be  entered,  but  shall  not  cause  his  answer  to 
be  filed  in  due  time,  an  application  may  thereupon  be  made 
to  the  chancellor  (without  previous  notice)  by  petition,  stating 
the  circumstances,  for  an  order  that  the  defendant  answer 
the  complainant's  bill  in  such  time,  after  service  of  a  copy 
of  the  order  for  that  purpose,  as  the  chancellor  shall  direct, 
or  in  default  thereof,  that  the  bill  be  taken  pro  confesso ;  and 
if  the  defendant  shall  not  answer  within  the  time  limited  by 
such  order,  a  rule  for  taking  the  bill  pro  confesso  may  be 
entered,  as  of  course,  on  filing  an  affidavit  of  the  service  of  a 
copy  of  the  said  rule. 


November  1st,  1816. 

Ordered,  That  so  much  of  the  47th  rule  as  refers  to  costs 
for  copies  of  the  masters'  reports  be  repealed,  and  in  lieu 
thereof,  that  the  masters  shall  be  allowed  fees  for  copies  of 
the  draft  of  their  reports  furnished  to  the  parties  in  those 
cases  in  which,  by  the  practice  of  this  Court,  the  master 
ought  to  deliver  a  draft  of  his  report  before  he  signs  it,  that 
the  parties  may  take  objections ;  and  that  where  a  master 
shall  take  account  of  an  estate,  or  an  administration  thereof, 
or  an  account  between  parties  in  trade,  or  other  account 
[  *  630  ]  under  a  decree  or  order,  and  not  *coming  within  any  specific 
provision  in  the  fee  bill,  or  when  extra  services  shall  be  ren- 
dered in  the  foregoing  cases  of  taking  and  stating  accounts, 
the  taxing  masters  may  make  such  further  allowance  as; 
under  the  circumstances,  may  be  just  and  reasonable,  but 
486 


ORDERS  OF  COURT.  63C 

subject  to  the  chancellor's  revisal,  at  the  instance  of  either     ORDERS  or 
party  in  the  cause.  COURT. 


October  15th,  1817. 

In  order  to  obviate  the  inconveniences  arising  from  the 
irregular  manner  in  which  copies  of  pleadings,  depositions, 
reports,  and  other  papers,  are  at  present  made  out,  It  is 
Ordered,  That  in  future,  the  register,  assistant  register, 
clerks,  masters,  and  examiners  of  this  Court  shall,  in  the 
copies  of  all  pleadings,  depositions,  reports,  decrees,  and 
other  papers  or  pleadings  filed,  or  remaining  of  record  in  this 
Court,  which  they  shall  make  out  and  deliver  to  the  parties, 
or  their  solicitors,  to  be  used  in  this  Court,  and  in  all  tran- 
scripts of  the  same  to  be  transmitted  to,  or  used  in  the  Court 
for  the  Trial  of  Impeachments  and  Correction  of  Errors,  dis- 
tinctly mark  and  set  down  in  the  margin  thereof,  the  number 
of  the  page  in  the  original  pleading,  deposition,  report,  or 
other  paper,  so  that  all  the  office  copies  made  out  by  the 
several  officers  of  this  Court  may,  in  this  respect,  agree  with 
each  other. 


October  16th,  1817. 

Ordered,  That  the  allowance  settled  by  the  chancellor  as 
a  compensation  for  guardians,  executors  and  administrators, 
in  the  settlement  of  their  accounts  under  the  act  of  the 
legislature,  for  receiving  and  paying  money,  shall  be  five  per 
cent,  on  all  sums  not  exceeding  one  thousand  ^dollars,  for  [  *  631 
receiving  and  paying  out  the  same ;  two  and  a  half  per  cent, 
on  any  excess  between  one  and  five  thousand  dollars,  and 
one  per  cent,  for  all  above  five  thousand  dollars. 


June  llth,  1818. 

Ordered,  That  so  much  of  the  94th  rule,  of  the  1st  of 
November,  1816,  as  authorizes  the  taxing  master  to  make 
allowances  beyond  the  specified  provisions  of  the  fee  bill,  to 
masters,  for  extra  services,  without  any  previous  directions 
in  the  case  by  the  chancellor,  be  repealed. 

487 


631  ORDERS  OF  COURT. 


JOUKT 


ORDKKS  OF  July  %d, 

In  addition  to  the  33d  printed  rule,  It  's  Ordered,  Thai 
when  the  complainant  shall  set  down  the  cause  for  hearing 
at  the  first,  or  any  term  after  the  same  is  in  readiness  to  be 
set  down,  but  shall  not  bring  the  same  to  a  hearing  at  such 
term,  nor  show  any  good  cause  to  the  Court  at  the  time  for 
not  doing  so,  it  shall  be  considered  a  default  in  the  com- 
plainant, so  as  to  authorize  the  defendant,  on  making  and  filing 
an  affidavit  thereof,  to  enter  an  order  for  leave  to  set  down 
the  cause  in  the  same  manner,  or  to  the  like  effect,  as  though 
the  complainant  had  omitted  to  set  down  the  cause  at  the 
first  term,  after  it  was  in  readiness. 


July  3d,  1818. 

Ordered,  That  whenever  a  party  shall  set  down  a  cause 
for  hearing,  and  give  notice  thereof,  and  shall  neglect  to 
[  *  632  ]  bring  the  same  to  a  hearing  at  the  term  in  which  it  *shall  so 
be  set  down,  or  show  good  cause  to  the  contrary,  to  the 
satisfaction  of  the  Court,  the  opposite  party  shall  be  entitled 
to  costs  for  attendance  on  the  Court  upon  such  notice,  to 
be  taxed. 


November  IQth,  1818. 

In  order  the  better  to  preserve  the  orderly  and  regular 
practice  of  the  Court,  and  to  give  the  most  authentic  evidence 
of  the  matters  upon  which  the  decrees  of  the  Court  are 
founded,  and  also  to  secure  to  the  officers  of  the  Court  their 
just  and  lawful  dues,  It  is  Ordered,  that  in  all  cases  hereafter 
brought  to  a  hearing,  or  submitted  without  hearing,  upon 
pleadings  and  proofs,  or  upon  pleadings  only,  the  parties 
shall  furnish  to  the  chancellor  for  his  use,  office  copies  of 
the  pleadings  and  depositions  on  their  parts  respectively  to 
be  produced,  duly  made,  examined  end  certified  by  the  officer 
in  whose  custody  the  originals  may  be. 
488 


IND  EX. 


A. 


ACCOUNT. 

1.  An  assignee  of  an  executor,   or 
of  the  administrator  of  an  execu- 
tor, cannot  be  called  to  an  account 
by   the   legatees,  where   there  is 
no  fraud  or  collusion,  even  though 
the    assets   could    be   traced   and 
identified.     Rayner   v.  Pearsall, 
and  others,  578 

2.  Where  an  executor  put  bonds  and 
notes  due  to  the  testator,  into  the 
hands  of  an  attorney  to  collect, 
and  after  the  death  of  the  executor, 
the  attorney  collected  the  money, 
and  applied  it  to  his  own  use,  and 
became  insolvent :  Held,  that  the 
estate   of  the   executor    was    not 
chargeable  with  the  loss,  especially 
after  a   lapse   of    more    than   six 
years.  ib. 

3.  Where  the  administrator  of  an  ex- 
ecutor, in  his  answer  to  a  bill  filed 
by  the  representatives  and  legatees 
of  the  testator,  for  an  account,  &c., 
sets  forth  an  account,  and  avers, 
that   he    had    fully    administered, 
&,c.,  and  had  distributed  the  sur- 
plus,   being    a   trifling    sum,    the 
Court  refused  to  order  a  reference 
to  a  master  for  a  further  account, 
especially  after  a  lapse  of  twelve 
years.  ib. 

4.  Where  the  charges  in  the  bill  are 
specific,  setting  forth  the  items  of 

VOL.  III.  62 


the  account,  with  their  dates,  DH 
an  order  of  reference  for  an  ac- 
count, the  inquiry  is  not  open  be- 
yond the  special  matter  charged  ; 
although  the  bill  may  contain  a 
general  charge  at  the  conclusion, 
and  a  prayer  for  a  "full  account 
concerning  the  premises."  Con- 
sequa  v.  Fanning  and  others, 

537 

5.  If  a  merchant  abroad  sends  goon's 
to  a  merchant   here,    by  his   or- 
der, or  by  that  of  his  agent,  which 
are  received  with  the  invoice,  and 
accepted,    without    any  objection 
at  the  time,  he  cannot,  afterwards, 
object  that  the  goods  were  over- 
charged in  price.  ib. 

6.  Where  a  consignee  of  goods  sells 
some  of  them  on  credit,  and  settles 
with  his  consignor,  and  pays  him 
the  full  amount,  he   cannot  after- 
wards claim  to  be  reimbursed  for 
any  part,  on  the  ground  of  a   bad 
debt  made  in  the  sale;  there  being 
no  fraud  or  mistake  in  the  settle- 
ment, ib. 

7.  Unsettled    accounts  do   not    bear 
interest.  ib. 

8.  Where  a  balance  of  an  account  ia 
paid  without  any  charge  of  inter- 
est, interest  cannot  afterwards  be 
demanded.  ib. 

9.  An  order  of  reference  for  an  ac- 
count  before  a  master,  must   be 
founded   on    the    pleadings    and 
proofs,  and  cannot  be  made  more 
extensive  than  the  allegations  and 
proofs  of  the  parties.     S.  C.     595 

489 


INDEX. 


Vide  BARON  AND  FEME,  1,  2,  7.  IN- 
TEREST, 3,  4.  JURISDICTION,  4. 
PARTNERSHIP,  3.  PLEADING,  IV. 
20.  PRACTICE.  USURY,  3. 

Action  of  account,  vide  ACTION,  2. 


ACTION. 

1.  If  one  person  makes  a  promise  to 
another,  for  the  benefit  of  a  third, 
that  third  person  may  maintain 
an  action  at  law  on  the  promise. 
Duke  of  Cumberland  and  others 
v.  Codrington  and  others,  254 

I.  An  action  of  account  may  be 
brought  at  law  by  one  partner 
against  another,  and  there  appears 
to  be  no  good  reason  why  that  ac- 
tion is  not  resorted  to,  instead  of  a 
bill  in  equity.  Duncan  v.  Lyon, 

361 

U.  An  action  of  covenant  lies  at  law 
by  one  partner  against  another, 
where  by  the  contract  there  is  a 
covenant  to  account.  Duncan  v. 
Lyon,  362 

4.  And  an  action  of  assumpsit  will 
also  lie  on  a  promise  in  writing  by 
one   partner  to  take  part  of  the 
goods  bought,  in  which  they  were 
to    be   equally    concerned    as   to 
profit  and  loss.  ib. 

5.  An  action  on  the  case  for  a  deceit 
lies  against  a  person  selling  land, 
knowing  that  he  had  no  valid  title, 
although   the    deed    contains   no 
covenants.     Roberts  and  Boyd  v. 
Anderson,  375 

Action  by  a  factor  in  his  own  name, 
vide  JURISDICTION,  5. 


ADMINISTRATION. 

Vide  EXECUTOR  AND  ADMINISTRATOR, 
II. 
490 


ADMINISTRATOR. 
Vide  EXECUTOR  AND  ADMINISTR  \TOR 

AGENT. 

1.  G.  was  engaged  by  M.,  theownei 
of  a  ship,  as  supercargo  on  a  tra- 
ding voyage,  and  was  to  receive  as 
a  compensation  for    his  services, 
two  and  a  half  per  cent,  on  the 
proceeds   of  the   outward    cargo, 
and  five  per   cent.,  or  one  twen- 
tieth  of    the    net   profits   of   the 
voyage,  on  its  termination.     He 
fell    sick     during     the     outward 
voyage,  and   left  the  ship,  having 
appointed  another  supercargo  for 
the    residue  of  the    voyage,    and 
agreed  to  pay  him  out  of  his  own 
commissions.     It    was  held,  that 
the   legal    representatives  of  G., 
who   died    on    his   return    home, 
were  entitled  to  the  full  compen- 
sation stipulated,  the  ship  having 
successfully  performed  the  voyage, 
and  which  produced  a  large  profit 
to  M.,  and  the   substitute  to    G. 
having    faithfully   performed    his 
duty    as     supercargo.     Gray    v. 
Murray,  178 

2.  G.,  being  about  to  proceed  on  a 
distant  voyage,  ordered  insurance 
to    be    made   on    his   life   to   the 
amount  of  3,000  pounds  sterling, 
and  M.  undertook  to  pay  the  pre- 
mium, and  have  the  business  com- 
pleted, and  his  agent  in  London 
obtained  a  policy  for  that  amcvut, 
and   paid   the    premium    for    '  ne 
year.     M.,    afterwards,     alleging 
that  there  was   a   mistake   in  the 
order,  without  the  knowledge  of 
G.,   procured   the   policy   to    be 
cancelled,  and    the   premium  re- 
turned, and  another  policy  to  be 
executed  for  450  pounds  sterling. 
G.  having  died  within  one  year, 
M.  was  held  to  be  responsible  to 
his  legal   representatives   for   the 


INDEX 


amount  of  the  original  policy, 
which  had  been  so  cancelled, 
deducting  the  premium.  S.  C. 

183 

3.  A  general  agent  cannot  bind  his 
principal  personally,  for  a  debt 
chargeable  on  the  land  descended 
to  his  principal.  Duke  of  Cum- 
berland and  others  v.  Codrington 
and  others,  274 

i.  Where  the  several  joint  owners  of 
a  cargo  appoint  one  of  the  part 
owners  their  agent,  to  receive  and 
sell  the  cargo,  and  distribute  the 
proceeds,  he  is  entitled,  under 
such  special  agency,  to  a  commis- 
sion, or  compensation  for  his  ser- 
vices, as  a  factor  or  agent,  in  the 
same  manner  as  a  stranger;  and, 
as  such  factor  or  agent,  he  may  re- 
tain the  goods,  or  their  proceeds, 
as  security  not  only  for  his  ad- 
vances, disbursements,  or  respon- 
sibilities, in  regard  to  the  par- 
ticular property,  but  for  the  bal- 
ance of  his  general  account. 
Bradford  v.  Kimberly  and  Brace, 

431 

5.  Where  an  agent  has  duly  and  fairly 
accounted  with  his  immediate  and 
authorized  principal,    he    is    not 
bound  to  account  over  again  to  a 
person  beneficially  interested,  or 
standing  in  the  relation  of  cestuy 
quc  trust  to  the  principal.      Trip- 
ler  and  others  v.  Olcott  and  Lord, 

473 

6.  Where  F.  made  a  bill  of  sale  of  a 
ship,  then  on  her  voyage,  and  of 
freight  to  be  earned,  to  L.,  which 
was  absolute  on  the  face  of  it,  and 
Z..,  sent  to  0.,  the  master  of  the 
ship,  a    copy  of  the   bill  of  sale, 
with  a  power  of  attorney  and  in- 
structions to  him  as  to  the  disposi- 
tion of  the  property,  and  0.,  con- 
sidering   L.  as    the    owner    from 
that  time,  acted  as  his  agent,  and 
afterwards  accounted  to  him   toi 
the  proceeds  of  the  freight,  &c. 
Held,  that  0.  was  not  accountable 


to  jP.,  as  having  a  resulting  trust, 
though  some  of  the  letters  from 
L.  to  0.  incidentally  mentioned, 
that  the  bill  of  sale  was  intended 
to  secure  C.  certain  advances 
and  responsibilities ;  there  being 
no  fraud  or  collusion  between  L. 
and  0.  ib. 

7.  Where  the  supercargo  and  agent 
of  a  merchant  here  delivers  goods 

O 

to  a  merchant  abroad  for  sale, 
and  the  agent  settles  with  the 
merchant  abroad,  according  to 
the  account  stated  by  him,  with 
full  knowledge  of  all  the  facts, 
without  any  fraud  or  imposi- 
tion, the  principal  here  is  bound 
by  the  act  of  his  agent,  and  is 
concluded  from  any  further  claims 
against  the  merchant  abroad, 
especially  after  having  kept  the  ac- 
count for  several  years,  without 
making  any  objections  to  it. 
Murray  and  Murray  v.  Toland 
and  Meade,  569 

8.  A  factor  who  delivers  goods  to  a 
third  person  to  be  sold  on  account 
of  his  principal,  may  maintain  an 
action  at  law,  in  his  own  name, 
against   such  third  person,  for  the 
proceeds.  ib. 

Vide      AGREEMENT,      3.      JURISDIC- 
TION, 5. 


AGREEMENT. 

Construction,  effect,  waiver  of,  and  re- 
scinding agreement. 

1.  Where  one  party  intends  to  aban- 
don or  rescind  a  contract,  on  the 
ground  of  a  violation  of  it  by  the 
other,  he  must  do  so  promptly  and 
decidedly,  on  the  first  information 
.    of  such  breach.     If  he  negotiates 
with  the  party,  after    knowledge 
of  the  breach,  and  permits  him  to 
491 


536 


INDEX. 


proceed  in  the  work,  it  is  a  waiver 
of  his  right  to  rescind  the  contract. 
Lawrence  and  others  v.  Dale  and 
others,  23 

2.  The  defendants    contracted  with 
the  plaintiffs,  to  be  responsible  for 
the  perfect  construction  and  per- 
formance of   certain  steam-boats 
to  be  built  on  the  river  Ohio,  so 
that  they  should  carry  one  hundred 
tons  burden,  and  run  four  miles 
an  hour  in  still  water.     Held,  that 
the  plaintiffs  could  not,  after  the 
boats  were  built,  rescind  the  con- 
tract  on    their  part,  and  recover 
back    the    money    advanced    by 
them  to    the    defendants,  on   the 
alleged    ground,    that    the    boats 
drew  too  much  water  to  navigate 
the  river,  without  having  first  put 
the   fitness  of  the  boats  to  navi- 
gate   the    river,    in   the    manner 
agreed  on  by  the  parties,  to  the 
test  of  experiment.  ib. 

3.  Where    copartners    in   trade   en- 
gaged a  clerk,  as  book-keeper  and 
cashier,  at  a  fixed  salary,  for  two 
years,  with  an  understanding  that 
he  should  have  a  larger  compen- 
sation   as  the    business  extended 
and   his    duties    increased ;    and 
during  the  third  year  it  was  dis- 
covered, that  the  clerk  had  over- 
drawn  moneys    belonging  to  the 
firm,  and  applied  the  same  to  his 
own  use,  of  which  he  afterwards 
rendered  a  statement ;  but  a  ma- 
jority of  the  partners    afterwards 
continued  him   in  their   employ  : 
Held,  that  he  was  entitled  to  an 
increased    compensation   for   his 
services  after  the  second  year,  the 
fact  of  continuing  him  in  service 
after  a  discovery  of  his  improper 
conduct   being  an  admission  that 
he  had  not  forfeited  his  right  to 
an    increased    allowance.      Kirk 
v.  Hodgson  and  others,  400 

Ante-nuptial  agreement,  vide    BARON 

and  FEME,  15,  16,  17,  18. 

492 


Where  agreement  must  be  in  writing 
vide  FRAUDS,  (STATUTE  OF.) 


ALIMONY. 
Vide  DIVORCE. 

AMENDMENT. 

1.  The   plaintiff,   on   petition,    after 
answer,  and  exception  to  the  an- 
swer, may  amend  his  bill,  by  add- 
ing new  charges  and  new  parties, 
upon  payment  of  costs,  if  a  new  or 
further  answer  be  required  ;   and 
the  plaintiff  must  amend  the  office 
copies  of  the  bill  taken  out  by  the 
defendants,  who    have   appeared, 
and  who  are  entitled  to  six  weeks, 
within     which     to      answer    the 
amendments.   Beckman  and  others 
v.   Waters  and  others,  410 

2.  In  case  defendants  be  added  to  the 
bill,  the  plaintiff  may  have  process 
of  subpoena,  and  proceed  against 
them  in  the  usual  course.  ib. 

3.  After    publication     passed,     and 
cause  set  down  for   hearing,  the 
plaintiff  will    not    be    allowed   to 
amend    his    bill    by    adding  new 
charges ;  but  may  file    a   supple- 
mental  bill,  on    payment   of  the 
costs  since  publication.   Shephard 
v.  Merrill,  423 

Vide  PLEADING,  IV.  25. 

ANSWER. 

Vide  PLEADING,  III. 

APPEAL. 

1.  An  appeal  is  only  a  stay  of  pro- 
ceedings in  the  first  instance,  and 
the  party  in  whose  favor  the  de- 
cree is,  may,  with  leave  of  the 
Court,  proceed,  notwithstanding 


INDEX. 


G31 


the  appeal :  and  on  motion  for 
that  purpose,  the  Court,  after  an 
appeal  filed,  ordered  a  reference 
to  a  master  to  ascertain  the  pre- 
cise sum  due  by  the  defendant, 
with  interest,  and  that  the  defend- 
ant bring  the  amount  into  Court, 
within  30  days  after  confirmation 
of  the  report,  or  that  he  gives  se- 
curity to  be  approved  of  by  a 
master,  to  perform  the  decree,  or 
such  decree  as  might  be  awarded 
against  him  on  the  appeal,  or  that 
execution  issue  notwithstanding 
the  appeal.  Messonier  v.  Kau- 
man,  66 

2  A  decretal  order  of  reference  to  a 
master  to  state  the  account  be- 
tween the  parties,  was  made  in 
September,  1815,  and  the  parties 
appeared  from  time  to  time,  before 
the  master,  until  the  16th  of  Oc- 
tober, 1817,  when  they  were  nearly 
ready  for  a  final  hearing  before 
him  ;  and  then  the  defendant  pre- 
sented an  appeal  from  the  decretal 
order,  dated  the  16th  of  October, 
1817.  On  petition  and  motion 
of  the  plaintiff,  the  Court  ordered 
the  master  to  proceed  in  taking 
the  account,  and  to  complete  and 
file  his  report,  notwithstanding 
the  appeal.  Barrow  and  others 
v.  Rhinelander,  120 

3.  This  Court,  notwithstanding  an 
appeal  filed  in  the  cause,  may,  in 
its  discretion,  award  execution  for 
the  sum  decreed  to  be  paid  by 
the  defendant,  unless  he  brings 
the  amount,  with  the  costs,  into 
Court,  within  a  certain  time 
given  for  that  purpose,  to  abide 
the  event  of  the  appeal,  &c.,  or 
give  security  to  the  satisfaction 
of  a  master  to  pay  the  amount  of 
the  principal,  interest  and  costs, 
on  the  affirmance  of  the  decree, 
or  such  part  thereof,  as  may  be 
payable  on  the  decree  of  the 
Court  above,  on  the  appeal. 
Riggs  and  others  v.  Murray,  160 


APPOINTMENT. 

Power  of,  vide  BARON  AND  Ft  ME,  4, 
5,6. 


ARTICLES. 

To  impeach  the  credit  of  witnesses, 
vide  PRACTICE,  V.  14,  15,  16 
18,  19. 


ASSETS. 

Vide  EXECUTOR  AND  ADMINISTRATOR, 
I.     MORTGAGE,  I.  6.  8.  9.  10. 


ASSIGNMENT. 

For  the  payment  of  debts,  vide  DEBT 
OR  AND  CREDITOR,  1.  7.  10. 

Of  usurious  debt,  vide  USURY,  2. 


ASSUMPSIT. 
Vide  ACTION,  1.  4. 

ATTACHMENT. 

For  breach  of  an  injunction,  vidi  IN- 
JUNCTION, I.  1. 

AUTHORITY. 

A  special  authority  must  be  strictly 
pursued,  and  a  purchaser  is  pre- 
sumed to  know  such  authority 
when  it  is  given  by  a  public 
statute ;  and  if  he  purchases 
where  the  authority  is  not  pur- 
sued, it  is  at  his  peril.  Denning 
and  others  v.  Smith  and  other::, 

311 
493 


638 


INDEX. 


B. 


BANKRUPT. 

1.  M.  Sf  S.,  partners  in  trade,  beM.g 
greatly    indebted    in    the    United 
States,  and  in  Europe,  on  the  2d 
of  December,  1799,  conveyed  cer- 
tain lands  to  B.  in  trust,  for  the 
security  and  payment  of  certain 
European  or    German   creditors, 
until  they  were  paid,  or  S.  should 
be  absolutely  exonerated  and  dis- 
charged   therefrom,   by    the    said 
creditors,     and      their     demands 
transferred  to  M.  alone,  or  S.  be 
otherwise    exonerated,  acquitted, 
or     discharged     therefrom ;     and 
after   the    said    debts   should    be 
satisfied,  or  the  said  S.  be  so  dis- 
charged   and    released,    then    in 
trust  for  M.      M.  4*  S.,  having 
committed  an  act  of  bankruptcy 
in    July,    1800,    were    duly   dis- 
cb'.rged  from   their    debts    under 
the    late    bankrupt    law    of   the 
United  States,  passed  April  £th, 
1800.     Held,    that    this    was    a 
valid    deed,    and    that    the    dis- 
charge of  S.  from  the  partnership 
debts,    under  the    bankrupt   law, 
was  not  a  fulfilment  of  the  con- 
dition on    which  the  trust  for  the 
German    creditors    was   created. 
M'Menomy  v.  Murray  and  others, 

435 

2.  A  discharge  under  a  bankrupt  law 
of  this  country  does  not  discharge 
the  debtor  from  debts   contracted 
and  made  payable  in  Europe,  or 
a  foreign  country,  unless  the  for- 
eign creditors  come  in,  and  prove 
their  debts  under  the  commission. 

ib. 

3  But  even  if  the  discharge  under 
the  bankrupt  law  should  be 
deemed  a  discharge  from  any  suit 
in  the  United  States,  for  debts 
due  to  the  German  creditors  of 
**?..  yet  that  would  not  satisfy  the 
494 


terms  and  conditions  of  the  deed 
of  trust,  unless  it  also  operated 
as  a  discharge  in  Germany 
where  the  debts  were  contracted 

ib. 

4.  The   late    bankrupt  law  did  not 
operate    upon    acts     declared    to 
be   acts  of  bankruptcy,    commit- 
ted prior  to  the  1st  of  June,  1800. 

ib. 

5.  A  conveyance  by  a  debtor  of  his 
property   to   secure    a    bona  Jide 
creditor,  executed  prior  to  the  1st 
of  June,  1800,   though   made   in 
contemplation    of  bankruptcy,  is 
valid,  not  being  within   the  pur- 
view of  the  bankrupt  law  of  the 
United  States,  of  the  4th  of  April, 
1800,  which  did  not  go  into  opera- 
tion until    after  the  first  of  June 
following ;    nor    is    it    fraudulent 
at  common   law.     M'Menomy  v. 
Roosevelt  and  others,  446 


BARON   AND  FEME. 

1.  Where  the  husband  is  permitted 
by  the  wife   to  have  the  manage- 
ment of  her  separate  property,  se- 
cured to  her  by  a  marriage  settle- 
ment, to  receive  rents,  &c  ,  very 
strict  proof  of  his  having  paid  to, 
and  settled  with  her,  during  her  life- 
time, for  the  sums  received,  is  not 
required  ;  but,  from  the  confiden- 
tial nature  of  the  connection,  the 
most  favorable  presumptions    are 
indulged  towards  him.     Methodist 
Episcopal   Church  and  others  v. 
Jaques  and  others,  77 

2.  He  cannot,  however,  claim  money 
received   by  him  for  a  judgment 
debt   due  to    the    wife,   on    the 
ground  of  the  mere  parol  declara- 
tion of  the  wife,  contrary  to  the 
terms  of  settlement.  ib. 

3.  A  feme  covert,    with   respect   to 
her   separate    property,    is  to    be 
considered    as    a  feme    sole,    to 
the   extent    only    of    the    power 


INDEX 


639 


given  to  her  by  the  marriage  set- 
tlement, ib. 

4  Her  power  of  disposition  is  not 
absolute,  but  sub  modo,  to  be  exer- 
cised according  to  the  mode  pre- 
scribed in  the  deed  or  will  under 
which  she  becomes  entitled  to  the 
property :  Therefore,  if  she  has  a 
power  of  appointment  by  will, 
she  cannot  appoint  by  deed;  or 
when  she  is  empowered  to  appoint 
by  deed,  the  giving  a  bond,  or 
note,  or  parol  promise,  without 
reference  to  the  property,  or 
making  a  parol  gift  of  it,  is  not 
such  an  appointment.  ib. 

it.  So,  when  it  is  said  in  the  settle- 
ment, that  she  is  to  receive  from 
her  trustee  the  income  of  her 
property,  as  it  may,  from  time  to 
time,  become  due,  she  has  no 
power,  by  anticipation,  to  dispose 
at  once  of  all  that  income.  ib. 

<).  The  question  as  to  the  power  of  a 
feme  covert,  over  her  separate 
property,  settled  to  her  separate 
use,  and  the  manner  of  its  ex- 
ecution examined.  S.  C.  86 

7.  If  a.  feme  covert,  having  a  sepa- 
rate estate,  secured  by  settlement, 
provides  by  will  for  the  payment 
of  her  funeral  expenses,  the  hus- 
band is  not  to  be    charged  with 
them ;  otherwise,  if  no  such  pro- 
vision had  been  made.  S.  C.    115 

8.  A  feme  covert  may  mortgage  her 
separate    property     for    her    hus- 
band's     debts.      Demare'st      and 
wife  v.  Wynkoop  and  others,    129 

0.  So,  she  may  also  execute  a  valid 
power  to  sell  the  property,  in  case 
of  default,  pursuant  to  the  stat- 
ute, ib. 

10.  In    a  mortgage    by  husband  and 
wife  of  the  wife's  separate  estate, 
the  wife  may,  if  she  choose,  re- 
serve the  equity  of  redemption  to 
the  husband  alone,  who  may  sell 
and  dispose  of  it.  ib. 

11.  A  testator,  by  his  will,  dated  Sep- 
tember 2o£/t,    1810,   gave   to  his 


d.  ughter,  during  her  separation 
from  W.  C.,  her  husband,  one 
thousand  dollars  a  year,  which  he 
charged  on  his  real  estate.  W.  C. 
and  his  wife  were  living  separate 
when  the  will  was  made,  but  co- 
habited together  in  February, 
1815,  when  the  testator  made  a 
codicil  to  his  will,  (changing  only 
the  executors,)  and  also,  at  his 
death,  but  separated  immediately 
after  his  decease,  and  continued 
to  live  separate  until  within  a 
short  time  previous  to  filing  the 
bill  by  W.  C.  and  his  wife,  against 
the  executors,  for  the  legacy. 
Held,  that  the  plaintiffs  were  no! 
entitled  to  the  legacy,  as  it  was  to 
be  inferred  that  they  separated  for 
the  sole  purpose  of  entitling  them- 
selves to  it,  and  the  bill  was  or- 
dered to  be  dismissed  with  costs. 
Cooper  and  Wife  v.  Remsen  and 
others,  382 

12.  And    it    was,    afterwards,    held, 
upon  the  same  clause  in  the  will, 
that  a  voluntary  separation  of  the 
wife    from    her    husband     would 
not  entitle  her  to  the  annuity,  for 
she  can  establish  no  claim  on  her 
own    violation   of  conjugal    duty. 
Cooper  and  Wife  v.  Clason  and 
others,  521 

13.  Whether  the  separation,  which  is 
to  give  effect  to  the  bequest,  must 
not    have  existed  at  the  time  of 
the  testator's  death  ?     Qucere.   ib 

14.  A  feme  covert  may  execute,  by  a 
will  in  favor    of  her    husband,  a 
power   given  or   reserved  to  her, 
while  sole,  over    her   real   estate. 
Bradish  ~,  Gibbs  and  others,  5~o 

15.  Where  the  wife,  before  marriage, 
entered   into  an    agreement  with 
her    intended    husband,  that  she 
should    have    power,    during   the 
coverture,  to  dispose  of  her  real 
estate  by  will,  and  she  afterwards 
devised    the  whole  of  her  estate 
to  her  husband,  this  was   held  a 
valid  disposition  of  her  estate  in 

495 


G40 


INDEX. 


equity ;  and  the  heirs  at  law  of 
the  wife  were  decreed  to  convey 
the  legal  estate  to  the  devisee. 
Bradish  v.  Gibbs  and  others,  523 
10.  To  enable  a  feme  covert  to  dis- 
pose of  her  real  estate  in  equity, 
it  is  not  necessary  that  the  legal 
estate  should  be  vested  in  trus- 
tees ;  but  a  mere  agreement  en- 
tered into  before  marriage  with 
her  intended  husband,  that  she 
should  have  power  to  dispose  of 
her  real  estate  during  coverture, 
will  enable  her  to  do  so.  S.  C.  540 

17.  Marriage  is  a  good,  valuable,  and 
meritorious   consideration    for  an 
antenuptial  contract.  S.  C.      550 

18.  A  husband,  in  regard  to  a  devise 
to  him  by  his  wife,  in  execution 
of  a  power,  is  not  a  volunteer,   ib. 

Vide  DIVORCE. 


BILL. 

Vide  DISCOVERY.     INJUNCTION,  II.  2. 
PLEADING,  II. 


C. 

COLLATERAL   SECURITY. 

Vide  MORTGAGE,  I.  7,  8,  9,  10. 

COMMISSIONERS    OF    LOANS. 

Vide  LOAN-OFFICERS. 

COMMISSIONS. 

1  A  committee  of  a  lunatic  is  en- 
titled to  an  allowance,  by  way  of 
compensation  for  his  services,  in 
receiving  and  paying  out  moneys, 
within  the  equity  of  the  statute, 
496 


(sess.  40.  c.  251.)  authorizing  this 
Court  to  make  a  reasonable  allow- 
ance to  guardians,  executors,  and 
administrators,  for  their  services 
In  the  Matter  of  Roberts,  43 

2.  Rule  as  to  the  rate  of  allowance 
to  guardians,  executors   and   ad- 
ministrators, ib. 

3.  G.  was  engaged  by  M.  as  a  super- 
cargo  of  a    ship,    on    a   trading 
voyage  from  New-York  to  Madei- 
ra,   the     Cape    of    Good  Hope, 
Madras  and  Calcutta,  and  thence 
back  to  New-  York ;  by  the  written 
instructions  to  G.,  by  which  much 
was  confided  to  his  judgment  and 
discretion,  he  was  to  receive  as  a 
compensation  for  transacting  the 
business,  two  and  a  half  per  cent. 
of  the  value  of  the  property  brought 
home  for  the  account  of  M.,  arising 
from  the  proceeds  of  the  outward 
cargo,  deducting  duties,  &,c.,  and 
to  have  his  reasonable  expenses, 
while  on  the  voyage,  paid  out  of 
the  cargo ;  and  to  be  allowed,  also, 

Jive  per  cent.,  or  one  twentieth 
part  of  the  net  profits,  on  its  ter- 
mination. G.  performed  his  duty 
from  New-York  to  Madeira,  and 
the  Cape  of  Good  Hope,  but  was 
taken  sick  at  the  latter  place,  and 
obliged  to  leave  the  ship,  and  died 
on  his  return  homeward  in  another 
vessel,  having  first  appointed  at 
the  Cape  B.  4*  B.  (one  of  whom 
had  been  a  clerk  of  M.,  and  par- 
ticularly recommended  to  G  's  at- 
tention,) his  substitutes,  as  super- 
cargoes for  the  remainder  of  the 
voyage,  agreeing  to  pay  them  for 
their  services  out  of  his  commis- 
sions. The  ship  proceeded  to 
Madras,  from  whence  it  was 
thought  best,  on  account  of  politi- 
cal circumstances,  to  return  to 
New-York,  without  going  to  Cal- 
cutta; and  on  the  return  of  the 
vessel  to  New-York,  the  home- 
ward cargo  was  delivered  to  M., 
who  cleared  a  considerable  profit 


INDEX 


641 


on  the  voyage,  B.  fy  B.  having 
faithfully  performed  their  duty  as 
supercargoes,  in  the  place  of  G. 
It  was  held,  that  the  legal  repre- 
sentative of  G.  was  entitled  to  the 
full  compensation  stipulated,  as 
for  the  completion  of  the  voyage. 
Gray  v.  Murray,  167 

4.  One  joint  partner  is  not  entitled, 
as  against  the  others,  to  a  com- 
pensation for  his  greater  or  more 
valuable  services,  in  regard  to  the 
common  concern,  unless  there  be 
a  special  agreement  to  that  effect. 
Bradford  \.  Kimberly  and  Brace, 

431 

5.  But  where  the  several  joint  owners 
of  a  cargo  appoint  one  of  the  part 
owners  their  agent  to  receive  and 
sell  the  cargo,  and  distribute  the 
proceeds,    he    is    entitled,    under 
such  special  agency,  to  a  commis- 
sion or  compensation  for  his  ser- 
vices as  a  factor  or  agent,  in  the 
same  manner  as  a  stranger.       ib. 

CONSIGNOR  AND  CONSIGNEE. 

Vide  ACCOUNT,  5,  6.     INTEREST,   4. 
JURISDICTION,  5. 

CONTEMPT. 
Vide  INJUNCTION,  I.   1.  MARRIAGE,  1. 

CONTRACT. 

Vide  AGREEMENT 

COSTS. 

I.  Costs  in  general. 
II.  Security  for  costs. 

I.  Costs  in  general. 

1.  Where,   on   a  bill  to  foreclose   a 
morterage,    a  subsequent  mortga- 
Vor..     I.  63 


gee,  or  judgment  creditor,  who  is 
made  a  party  defendant,  answers 
and  disclaims,  he  is  entitled  to 
costs  against  the  plaintiff,  to  be 
paid  out  of  the  fund,  if  that  is 
sufficient,  and  if  not,  to  be  paid 
by  the  plaintiff;  he  not  having 
applied  to  such  defendant  be- 
fore suit  brought,  to  release,  or 
otherwise  disclaim.  Catlin  v. 
Harned  and  others,  61 

2.  A  plaintiff  suing  mformapauperis, 
and  recovering  a   legacy  against 
executors,  is  entitled  only  to  the 
actual    costs  or  expenses  of  the 
suit,  to  be  paid  out  of  the  assets. 
Williams  v.  Wilkins  and  ot/iers, 

65 

3.  It  rests  in  the  discretion  of  the 
Court  to  order  pauper  or    dives 
costs,    according   to  the  circum- 
stances of  the  case.  ib. 

4.  Where  both   parties    are    equally 
innocent,  and  both  are  endeavor- 
ing  to    avoid    a    loss    caused    by 
another,  costs  will  not  be  awarded 
to    either    party  as    against    the 
other.     Pcndleton  v.   Eaton   and 
others,  69 

5.  Where    a  plaintiff  had  color  of 
claim,  though  barred,  in  the  opin- 
ion of  the  Court,  by  lapse  of  time, 
his    bill    was    dismissed    without 
costs.     Demarest    and   Wife    v. 
Wynkoop  and  others,  129 

6.  Costs  in  partition,  in  this  Court, 
are  charged  upon  the  parties  re- 
spectively,   in    proportion   to   the 
value   of  their  respective   rights. 
Phelps  v.  Green  and  others,     306 

7.  A  plaintiff  suing  in  autre  droit,  is 
not   responsible  for   costs,  unless 
under      special       circumstances. 
Goodrich  v.  Pendleton,  520 


II.  Security  for  costs. 

8.  The  defendant  is  not  entitled  to 
security  for  costs  from  a  non-res- 
ident plaintiff,  suing  as  adminis- 


r,42 


INDEX. 


trator,    especially    after    a    plea. 
Goodrich  v.  Pendleton,  520 

9  If  the  non-residence  of  the  plain- 
tiff appears  on  the  face  of  the  bill, 
and  the  defendant  demurs,  pleads, 
or  takes  any  other  step  in  the 
cause,  or  even  prays  for  time  to 
answer,  it  is  a  waiver  of  his  right 
to  security  for  costs.  ib. 


COVENANT. 
Vide  ACTION,  3 

CREDITOR. 

Vide  DEBTOR  AND  CREDITOR.     EXE- 
CUTION. 

D. 

DEBTOR   AND  CREDITOR. 

J  G.  assigned  a  cargo  and  the  pro- 
ceeds, &c.  to  K.  in  trust  for  the 
benefit  of  K.  and  M.,  but  M.  was 
to  be  first  secured  and  satisfied  for 
his  advances  to  G.  to  enable  G. 
to  pay  certain  bills  accepted  by 
him  drawn  and  negotiated  by  M. 
to  pay  for  the  cargo,  &c.  G. 
and  K.  afterwards,  with  the  as- 
sent, as  they  alleged,  of  the  agent 
of  M.,  but  without  the  knowledge 
or  consent  of  M.,  cancelled  the 
deed  of  assignment,  which  was 
dated  the  7th  of  February,  and 
executed  another  deed  of  assign- 
ment, on  the  28th  of  February,  to 
K.  and  S.,  in  trust  to  pay  M.  and 
K.  and  certain  other  creditors 
named  therein ;  and  in  case  the 
fund  proved  insufficient  to  pay  all 
the  debts  specified,  that  then  it 
should  be  distributed  ratably,  be- 
498 


tween  M.,  K.,  and  the  other 
creditors  named,  in  proportion  to 
their  respective  demands ;  and  the 
fund  eventually  proved  insufficient 
to  pay  all  the  debts  specified  in 
the  second  assignment :  Held, 
that  the  cancelling  of  the  first 
assignment,  by  G.  and  K.,  was 
fraudulent,  as  regarded  the  plair- 
tiff  M,,  who  was  therefore  entitled 
to  the  full  benefit  of  that  assign- 
ment, and  must  be  first,  and  ex- 
clusively paid,  out  of  the  fund,  his 
whole  demand;  and  that  the 
second  assignment,  so  far  as  it  was 
inconsistent  with  the  first,  or  as  to 
the  right  of  the  plaintiff  to  be  first 
paid,  was  void.  Messonier  v. 
Kaurnan,  Gomparts,  and  others,  3 

2.  The  personal  estate  of  an  intes- 
tate is  the   primary  fund  for  the 
payment  of  debts,    and  is   to    be 
first  resorted  to  by  the  creditor, 
at  law.         M'Kay  v.  Green  and 
others,  56 

3.  He  can  only  come  into  this  Court 
for  an   account  and  discovery  of 
assets,   and   on   the  ground   of  a 
trust  in  the  executor  or  adminis- 
trator to  pay  debts ;  not  for  a  sale 
of  real  estate,  on  a  supposed  equi- 
table lien,  arising  from  the  money 
advanced  by  him  having  been  ap- 
plied to  purchase  the  land.         ib. 

4.  Whether  a  creditor  in  an  ordinary 
case,  and    without   some    special 
cause,  can  come  into  this  Court 
to  collect  his  debt  from  an  execu- 
tor or  administrator,  or  merely  to 
enforce  a  ratable  distribution  of 
assets  1     QtHzre.  ib. 

5.  Under  the  first  section  of  the  stat- 
ute of  frauds,  (sess.  10.  c.  44.   13 
Eliz.  c.  5.)   a  fraudulent  convey- 
ance by  a  debtor  is  *'  utterly  void," 
as  to  creditors,  saving  a  bonajide 
purchaser  for  a  valuable  consider- 
ation, and  without  notice  of  the 
fraudulent  intent.         Roberts  and 
Boyd  v.  Anderson,  378 

6.  But  a  bonajide  purchaser  from  a 


INDEX. 


fraudulent  grantee  acquires  no 
title  by  the  conveyance  against 
the  creditors  of  the  fraudulent 
grantor.  Roberts  and  Boyd  v. 
Anderson,  378 

7.  M.  4*  S.,  partners  in  trade,  being 
greatly    indebted    in    the    United 
States  and  in  Europe,  on  the  2d 
of    December,     1799,     conveyed 
certain  lands  to  It.,  in  trust,  for 
the  security  and  payment  of  cer- 
tain European  or  German  credit- 
ors, until  they    were  paid,  or  S. 
should    be    absolutely  exonerated 
and  discharged  therefrom  by  the 
said  creditors,  and  their  demands 
transferred  to  M.  alone,  or  S.  be 
otherwise    exonerated,   acquitted, 
or     discharged     therefrom ;    and 
after  the  said  debts  should  be  sat- 
isfied, or  the  said  S.  be  so  dis- 
charged   and    released,    then    in 
trust  for  M.   M.  fy  S.,  having  com- 
mitted   an  act  of  bankruptcy  in 
July,  1800,  were  duly  discharged 
from  their  debts   under   the  late 
bankrupt  law  of  the  United  States, 
passed   April  4th,   1800.     Held, 
that  this  was   a  valid  deed,   and 
that    the   discharge    of   S.    from 
the  partnership  debts,  under   the 
bankrupt  law,  was  not  a  fulfilment 
of  the    condition    on    which   the 
trust  for  the  German  creditors  was 
created.     ftFMenomy  v.    Murray 
and  others,  435 

8.  A  discharge  under  a  bankrupt  law 
of  this  country  does  not  discharge 
the  debtor  from  debts  contracted 
and  made  payable  in  Europe,  or  a 
foreign  country,  unless  the  foreign 
creditors  come  in,  and  prove  their 
debts  under  the  commission,      ib. 

9.  But  even  if  the  discharge  under 
the  bankrupt  law  should  be  deemed 
a  discharge  from  any  suit  in  the 
United  States,  for  debts    due   to 
the  German   creditors  of  S.,  yet 
that  would   not  satisfy  the  terms 
and  conditions  of  the  deed  of  trust, 
unless  it  also  operated  as  a  dis- 


charge  in   Germa  ay,  where   the 
debts  were  contracted.  ib. 

10.  A  debtor  may  give  preferences  to 
some  of  his   creditors,   when    no 
legal  lien    intervenes,  and    when 
it  is  done  fairly,  and  from  honest 
motives.     S.  C.  444 

S.    P.    M'Menomy   v.    Roosevelt   and 
others,  446 

11.  A  voluntary  settlement  after  mar- 
riage by  a  person  indebted  at  the 
time,     is     fraudulent     and     void 
against  creditors.     Rcade  v.  Liv- 
ingston and  others,  492 

12.  A  voluntary  settlement  by  a  person 
indebted  is  presumed    fraudulent 
as  against  all  existing  debts,  with- 
out regard  to  their  amount,  or  to 
the  extent  of  the  property  settled, 
or   to   the    circumstances  of   the 
party.     S.  C.  500 

13.  But    with   respect   to  subsequent 
debts,  it  seems,  that  the  presump- 
tion  of  fraud     arising    from   the 
party's  being  indebted  at  the  time, 
may  be  repelled  by  circumstances ; 
as  that  the  existing  debts  are  se- 
cured by  mortgage,  or  by  a  pro- 
vision made  for  them  in  the  settle- 
ment.    S.  C.  501 

14.  And  subsequent  creditors  may  im- 
peach the  settlement  on  the  ground 
of  prior  indebtedness,  if  he   can 
show  antecedent   debts  sufficient 
in  amount  to  afford  reasonable  evi- 
dence of  a  fraudulent  intent ;  for 
he  is  not  obliged  to  show  the  ab- 
solute   insolvency   of  the   person 
making  the  settlement.  ib. 

Vide  EXECUTION.     MORTGAGE,   I,  8, 
9,  10.     PLEADING,  I.  2,  3. 

DECEIT. 

Action  on  the  case  for,  vide  ACTION,  5. 
DECREE. 

I.  There   can   be   no   valid   decre« 
499 


544 


INDEX. 


against  an  infant,  by  default,  nor 
on  his  answer  by  his  guardian ; 
but  the  plaintiff  must  prove  his 
demand  in  Court,  or  before  a 
master,  and  the  infant  will  have 
a  day  in  Court,  after  he  comes  of 
age,  to  show  error  in  the  decree. 
Mills  v.  Dennis  and  others,  367 

2.  But  if,  instead  of  seeking  a  fore- 
closure of  the  mortgage    against 
the  infant  heir  of  the  mortgagor, 
there  is  a  decree  for  the  sale  of 
the  mortgaged  premises,  the  de- 
cree will  bind  the  infant.  ib. 

3.  A  decree  entered  by  default,  and 
enrolled,  was  set  aside  on  motion, 
on  payment  of  costs,  the  plaintiff 
having    previously    been    served 
with    notice   of  the   motion,   and 
copies  of  the  affidavits,  on  which 
it    was     intended     to    be    made. 
Beckman  v.  Peck,  415 

Proceeding  on  decree,  notwithstanding 
an  appeal,  vide  APPEAL. 

Vide   INFANT,    4,    5,   6.     PRACTICE, 
II.  3. 


DEFAULT. 

Decree     by     default,     vide   DECREE. 
PRACTICE,  II. 


DEMURRER. 
Vide   DISCOVERY,   3      PLEADING,   V. 

DEPOSITION. 
Vide  EVIDENCE,  I.    1 

DESCENT. 

Of   equitable    estate,    vide   HEIR,    1. 
500 


DEVISE. 

1.  A  testator  must  have  a  legal  01 
equitable  title  in  the  land  devined, 
at  the  time   of  making  the  will, 
otherwise  nothing   passes  by  the 
devise.     A  subsequently  acquired 
title  will  not  pass  by  it.     M'Kin- 
non  v.  Thompson  and  others,   307 

S.  P.  Livingston  and  others  v.  New- 
kirk  and  Wife,  312 

2.  Where  a  devise  fails  for  want  of 
title  in   the   devisor,  the    devisee 
will  not  be  relieved  out  of  other 
parts  of  the  estate,  though  the  de- 
visor had  a  judgment  which  was 
a   lien   on  the   land.     STKinnon 
v.  Thompson  and  others,  307 

3.  An   equitable    interest   in    lands, 
founded  on  articles  of  agreement 
for  the  purchase,  will  pass  by  a 
subsequent   devise ;  and   if  there 
be  no  devise,  it  will    descend  to 
the  heir ;  and  the  executor  must 
pay  the  purchase  money  for  the 
benefit  of  the    heir.     Livingston 
and  others  v.  Newkirk  and  Wife, 

312 

Devise  by  wife,  under  a  power  re- 
served in  a  marriage  settlement, 
or  ante-nuptial  contract,  vide 
POWER. 


DISCHARGE. 

Of  bankrupt,  vide  FOREIGN  LAWS,  5. 

DISCOVERY. 

1.  After  a  verdict  at  law,  the  party 
comes  too  late  with  a  bill  of  dis- 
covery.    Duncan  v.  Lyon,      351 

2.  Where  the  plaintiff  was  sued   at 
law  on  notes  alleged    by  him  to 
be   usurious,   and    he    suffered    a 
verdict  and  judgment  to  be  taken 
against  him  without  making  a  de- 
fence, or  applying  to  this  Court  on 


INDEX. 


a  bill  )f  discovery  in  due  season, 
he  was  held  concluded,  and  not 
entitled  to  relief.  Thompson  v. 
Berry  and  Van  Buren,  395 

3.  Where  the  widow  of  a  deceased 
partner  filed  a  bill   against  the  ex- 
ecutors of  her  husband  fora  discov 
ery  and  account  of  the  co-partner- 
ship estate  and  effects ;  and   the 
surviving  partner  demurred  to  that 
part   of  the  bill  which   sought  a 
discovery,  alleging  that  it  might 
subject  him  to  penalties  under  the 
revenue  laws  of  the  United  States, 
but  without  showing   how  or  for 
what    cause     he   should    incur   a 
penalty  by  a  discovery,  the  Court 
overruled    the   demurrer :  such  a 
general  allegation  not  being  suffi- 
cient to  bar  the  discovery  in  the 
first   instance.     Sharp  v.    Sharp, 

407 

4.  A  bonajide  purchaser,  in  posses- 
sion of  an  estate,  is  entitled  to  a 
discovery  of  the  grounds,  on  which 
his  title  is  sought  to  be  impeached 
by  the  defendants,  who    had  re- 
vived    a    judgment    against    the 
person    from  whom   the   plaintiff 
derived  his   title,  and    which   he 
alleged    had    been    satisfied,  and 
had  issued   an   execution,  under 
which  the   sheriff  had  levied  on 
the  estate  and    advertised    it   for 
sale.     Kimberly     v.     Sells     and 
others,  467 

5.  On  a  bill  of  discovery  for  matters 
material   to   the    defence   of   the 
party  in  a  suit  at  law,  the  nature 
of  the   defence    at   law  must    be 
stated,  otherwise  this  Court  will 
not  grant  an   injunction.     M'ln- 
tyre  and  others  v.   Mancius   and 
Brown,  45 

Vide  PLEADING,  V.  27. 

DIVORCE. 

On  a  bill  by  a  husband  for  a  divorce, 
the  wife  will  not  be  allowed  ali- 


mony, nor  /ill  the  Court,  on  her 
motion,  order  the  husband  to  ad- 
vance money  to  enable  her  to  de- 
fend the  suit,  until  she  has,  by  her 
answer,  disclosed  the  nature  of 
her  defence.  Lewis  v.  Lewis,  519 


E. 


ELECTION. 

1.  A  creditor  filed  a  bill  to  set  aside, 
or  to  obtain  relief  against  a  judg- 
ment confessed  by  his  debtor  in 
the  Supreme  Court,  on  the  ground 
of  fraud,  and  obtained  an  injunc- 
tion to  stay  all  proceedings  on  the 
judgment ;  and  while  the  suit  was 
pending   in    this    Court,   he   pro- 
ceeded   at    law,    and    recovered 
judgment  against  his  debtor,  and 
issued   execution    thereon,  under 
which  the  property  of  the  debtor 
was     advertised     for    sale.     The 
Court  refused  to  dismiss  the  bill 
on  the  petition  of  the  defendants; 
but  ordered  the  plaintiff  to  make 
his  election,  either  to  stay  his  ex- 
ecution at  law   during   the   con- 
tinuance   of   the    injunction,    or 
consent   to   have   the    injunction 
dissolved ;  and   the    plaintiff'    re- 
fusing to  make   an  election,  the 
injunction    was,     forthwith,     dis- 
solved.    Livingston  v.  Kane  and 
others,  2'24 

2.  Where    the    plaintiffs    sued    the 
defendant  on  his  contract  at  law, 
and    a  few  days  before  the   trial 
of   the    cause,    discovered    facts 
amounting    to  a  fraudulent   con- 
cealment by  the    defendant ;  but 
proceeded    to  take  a  verdict   for 
the    amount   claimed,   on    which 
judgment   was    entered   up ;  and 
they  afterwards  filed  their  bill  in 
this  Court  for  relief  against   the 
contract,  on    the   ground   of  the 

501 


616 


INDEX. 


fraud :  Held,  that  by  going  to 
trial,  and  taking  judgment,  the 
plaintiffs  had  made  their  election 
of  their  remedy  at  law,  and  the 
remedies  at  law  and  in  equity 
being  inconsistent,  they  were 
bound  by  that  election.  Sangcr 
and  others  v.  Wood,  416 

3.  Any  decisive  act  of  the  party, 
with  knowledge  of  his  rights  and 
of  the  fact,  determines  his  election, 
hi  the  case  of  inconsistent  reme- 
dies, ib. 

EQUITABLE  ESTATE. 
Vide  MORTGAGE,  I.  1. 

EQUITY  OF   REDEMPTION. 

Vide  MORTGAGE. 

EVIDENCE. 

I.   Written  evidence. 
II.  Parol  evidence,  witnesses,  and  ex- 
amination. 

I.   Written  evidence. 

\.  A  deposition  taken  in  an  eject- 
ment suit  at  law,  brought  by  the 
defendants  against  a  third  person 
as  tenant,  to  recover  the  land,  the 
p abject  of  the  suit  here,  is  not  ad- 
missible in  evidence  against  the 
plaintiffs;  it  being  res  inter  alias 
acta.  Roberts  and  Boyd  v.  An- 
derson, 371 

II.  Parol  evidence,  witnesses,  and  ex- 
amination. 

2.  A  person  who  has  fraudulently  ac- 
quired title  to  land,  and  fraudu- 
lently conveyed  it,  though  by  a 
mere  quit-claim  deed,  without 
covenants,  is  not  a  competent 
witness  for  his  grantee,  in  a  suit 
502 


brought  against  him  by  a  peison 
claiming  it,  as  a  bona  Jide  pur- 
chaser. Roberts  and  Boyd  v. 
Anderson,  371 

3.  The  rule  of  evidence  as   to   im 
peaching  the  credit  of  witnesses 
who  have  been  examined,  should 
be  the  same  in  equity  as  at  law  ;  the 
inquiry  ought  to  be  general,  as  to 
the  general  character  of  the  wit- 
ness    for      veracity.      Troup     v 
Sherwood  and  Wood,  558 

4.  But  it  seems,  that  on  a  special  ap- 
plication to  the  Court,  the  inquiry 
may  be  allowed  to  go  beyond  the 
general    credit,    as   to    particular 
facts  affecting  his  character,  pro- 
vided those  facts  are  not  material 
to  the  matter  in  issue  between  the 
parties.  ib. 

5.  A  defendant  who  is  charged  by 
the  plaintiff  as    fraudulently  col- 
luding with  his  co-defendant,  in 
regard  to  the  transactions  sought 
to  be  impeached,  cannot  be  a  wit- 
ness for  his  co-defendant,  especial- 
ly when  he  has  an  interest  in  the 
cause  arising  from  his  liability  for 
costs    and  his    ultimate  responsi- 
bility   if  the    charge    is   proved. 
Whipplc  and  Wife  v.  Lansing  ana 
Van  Rcnsselaer,  6]  2 

6.  And  the  cause,  after  issue,  having 
been    referred    to    a   master,    by 
consent,  to  take   an  account,  he 
cannot  be  allowed  to  be  examined 
before  the  master,  even  as  a  wit- 
ness de  bene  csse.  ib. 

Articles  to  impeach  the  credit  of  wit- 
nesses, vide  PRACTICE,  V.  14,  15 
16,  17,  18,  19. 


EXECUTION. 

A  judgment  creditor,  other  than  the 
mortgagee,  may  sell  the  equity  of 
redemption  on  execution.  Shot- 
tenkirk  and  others  v.  Wheeler  anA 
others,  275 


INDEX. 


Execution  notwithstanding  an  appeal, 
vide  APPEAL,  1,  3. 


EXECUTOR    AND  ADMINIS- 
TRATOR. 

I.  Assets. 

II,  Administration    and  payment   of 

debts  and  legacies. 

III.  Actions  by  and  against,  and  costs 

in  such  actions. 


I.  Assets. 

1.  The  personal  estate  of  an  intes- 
tate  is  the  primary  fund  for  the 
payment  of  debts,  and  is   to    be 
first  resorted  to  by  the    creditor, 
at   law.     M'Kay   v.   Green   and 
others,  56 

2.  He  can  only  come  into  this  Court 
for  an  account  and  discovery  of 
assets,  and    on  the  ground   of  a 
trust  in  the  executor  or  adminis- 
trator to  pay  debts ;  not  for  a  sale 
of  real  estate,  on  a  supposed  equi- 
table lien,  arising  from  the  money 
advanced    by   him,    having   been 
applied  to  purchase  the  land.     ib. 

3.  Whether  a  creditor  in  an  ordinary 
case,  and    without   some   special 
cause,  can  come  into  this  Court, 
to  collect  his  debt  from  an  execu- 
tor or  administrator,  or  merely  to 
enforce  a  ratable  distribution  of 
assets  1     Qiitzrc.  ib. 

4.  A  mortgage  interest  before  fore- 
closure is  a  chattel  and  personal 
assets,  belonging  to  the  executor. 
Demarcst  and  Wife  v.  Wynkoop 
and  others,  145 

5.  In  marshalling  assets,  the  estate 
descended  to   the  heir    is   to    be 
applied  to  the  payment  of  debts, 
before  the  estate  devised,  unless 
devised    specially    to   pay   debts. 
Livingston     v.     Livingston    and 
others,  148 

6.  Where  the  personal  estate  is  in- 


sufficient for  the  payment  of  th« 
testator's  or  intestate's  debts,  the 
Court  of  Probates,  under  the  ac» 
for  that  purpose,  may  sell  the  rea1 
estate  of  which  the  testator  or  in 
testate  died  seised  ;  but  not  lands 
held  in  trust  for  the  testator.  ib. 

7.  The  heir  is  not  entitled  to  contribu- 
tion from  the  devisee,  towards  the 
satisfaction  of  creditors.  ib. 

8.  Nor  does  equity  help  a  pecuniary 
legatee   to   throw  a  debt  against 
the  personal  estate  upon  a  devisee 
of  land.  ib. 

9.  But    different  devises,  in  respect 
to  a  charge  on  all  the  estate  de- 
vised, must  contribute,  on  a  de- 
ficiency of  assets,  in  proportion  to 
the    value  of  their  respective  in- 
terests ;  as,  to  pay  an  annuity  to 
the  widow  of  the  testator,  or  debts 
of  the  testator  remaining  unsatis- 
fied after  the  personal  estate  and 
all  the  real  estate  not  devised,  had 
been  exhausted.  ib. 

10.  Equity  will  marshal  assets  de- 
scended to  the  heir,  in  favor  of, 
and  for  the  relief  of,  specific  lega- 
tees. S.  C.  153 

11.  Where  a  person  takes  a  convey- 
ance of  land  subject  to  a  mort- 
gage, coven  an  ting  to  indemnify  the 
grantor  against  the  mortgage,  and 
having  paid  off  part  of  the  encum- 
brance, dies  intestate,  the  land  is 
the  primary  fund  to  be   resorted 
to  for  payment  of  the  residue,  and 
the  heir  cannot  throw  the  charge 
upon  the  personal  representatives. 
Duke  of  Cumberland  and  others 
v.  Codrington  and  others,         229 

12.  If  the  purchaser  has  even  rendered 
himself  liable,  at  law,  to  the  mnrl 
gagee,  or   creditor,  for   the   pay- 
mentof  the  debt,  this  circumstance 
will  not  be  sufficient   to   change 
the  natural  course  of  assets ;  there 
must  also  be  proof  of  strong  and 
decided  intention  to  subject  the 
personal  estate  to  the  charge,    ib. 

13.  By  an  express  direction  in  his  will, 

503 


648 


INDEX 


or  by  dispositions,  or  language 
equivalent  to  an  express  direction, 
the  purchaser  may  throw  the 
charge  upon  his  personal  assets. 
Duke  of  Cumberland  and  others  v. 
Codrington  and  others,  229 

14.  If  the  purchaser,  having  subjected 
his  personal  estate  to  the  charge, 
dies,   and  the    land   descends    to 
his  heir,  who  is  also  his  personal 
representative,  although  the  per- 
sonal funds  of  the  ancestor,  in  the 
hands  of  the  heir,  were  liable  for 
the  debt,  yet  on  the  death  of  the 
heir,  his  personal    assets  are  not 
the  primary  fund  for  payment,  ib. 

15.  An  executor  or  administrator  can- 
not bind  the  personal  assets,  for  a 
debt  not  chargeable    upon    them 
before.  S.  C.  273 

(6.  The  order  of  marshalling  assets, 
towards  the  payment  of  debts,  is, 
to  apply,  1.  The  general  personal 
estate  ;  2.  Estates  specifically  and 
expressly  devised  for  the  payment 
of  debts,  and  for  that  purpose  only  ; 
3.  Estate  descended ;  4.  Estates 
specifically  devised,  though  gener- 
ally charged  with  the  payment  of 
debts.  Livingston  and  others  v. 
Newkirk  and  Wife,  312 

17.  If  an  executor  or  administrator 
pays  debts  out  of  his  own  money, 
to  the  value  of  the  personal  assets 
in  hand,  he  may  apply  those  assets 
toreimburse-himself;  and  by  such 
election,  the  assets  become  his 
own  property.  ib. 

Vide  MORTGAGE,  I.  6. 


!I    Administration    and   payment   of 
debts  and  legacies. 

18.  An  equitable  interest  in  land, 
founded  on  articles  of  agreement 
for  the  purchase,  will  pass  by  a 
subsequent  devise ;  and  if  there 
be  no  devise,  it  will  descend  to 
the  heir ;  and  the  executor  must 
504 


pay  the  purchase  money  for  the 
benefit  of  the  heir.  Livingston 
and  others  \.  Newkirk  and  Wife, 

312 

19.  Where   a   deed    to   the    testator 
comes  in  the  possession  of  the  ex- 
ecutor, who  does  not  produce  it, 
or  account  for  its  loss,  the  most 
favorable    intendrnent,    as   to    its 
contents,    will    be   made    for  the 
benefit  of  the  heir.  ib. 

20.  If  an   executor   or   administrator 
pays  debts  out  of  his  own  moneys, 
to  the  value  of  the  personal  assets 
in  hand,  he  may  apply  those  assets 
to    reimburse    himself;    and    by 
such   election  the  assets  become 
his  own  property.  ib. 

21.  If  an  executor  be  directed  to  sell 
land,  it  seems,  that  he  cannot  re- 
tain it,  as  he  may  personal  assets,  ib. 

22.  But  if  the  personal  assets    prove 
insufficient,  and  the  executor  has 
paid  debts  out  of  his  own  money, 
to  the  value  of  the  land,  he  may,  if 
the  land  is  ordered  to  be  sold,  re- 
tain the  proceeds  for  his  own  in- 
demnity, ib. 

23.  The  order  of  marshalling  assets, 
towards  the  payment  of  debts,  is 
to  apply,  1.  The  general  personal 
estate  ;  2.  Estates  specifically  and 
expressly  devised  for  the  payment 
of  debts,    and    for    that   purpose 
only ;    3.  Estates   descended ;    4. 
Estates        specifically       devised, 
though    generally    charged    with 
the  payment  of  debts.  ib. 

24.  Where    the    testator   devised    his 
real    and   personal   estate    to   his 
executors,  for  the  payment  of  his 
debts;  on  a  bill  for  an    account, 
stating  that  the  executors  refused 
to  distribute  the  personal  estate, 
and  to  sell  and  distribute  the  pro- 
ceeds  of  the   real  estate  ratably 
among  the  creditors,  and  threat- 
ened to  transfer  it  to  secure  certain 
favorite  creditors,  who  were  enti- 
tled to  no  preference  at  law,  or  in 
equity,  the  Court  granted  an  in« 


INDEX. 


649 


i  to  restrain  the  executors 
«o.n  selling  or  disposing  of  the 
estate.  Depau  v.  Moses  and 
others,  349 

25.  But  whether   this  Court  will,  in 
such  a  case,  at  the  instance  of  a 
creditor,  compel  a  ratable  distribu- 
tion of  assets  by  the   executors  ? 
Qiicere.  ib. 

26.  Where    administrators    sold    the 
leasehold  estate  of  the   intestate, 
and  took  the  promissory  note  of 
the  purchaser,  on  a  credit,  with- 
out any  security  for  the  payment 
of  the  purchase    money,  the    ad- 
ministrators were    held  liable   to 
the  next  of  kin  for   the  amount, 
the    purchaser     having     become 
insolvent.     King    v.    King     and 
Sharpe,  552 

Liability  of  estate  of  executor  to  lega- 
tees and  representatives  of  testa- 
tor, vide  ACCOUNT,  1,  2,  3. 


Til.  Actions  by  and  against,  and  costs 
in  such  actions. 

27.  An  executor  cannot  plead  the 
statute  of  limitations  in  bar  to  a 
legacy,  though  he  may  against  a 
creditor.  Decouche  and  others 
v.  Savetier  and  others,  217 

23.  An  administrator,  being  a  trustee, 
cannot  set  up  the  statute  of  limi- 
tations in  bar  of  the  next  of  kin, 
or  the  persons  entitled  to  the  dis- 
tribution of  assets.  ib. 

29.  Where  a  bill  is  filed  by  an  execu- 
tor for  a  settlement  of  his  ac- 
counts, and  for  disclosures  as  to 
distribution,  &,c.,  the  defendants 
are  not  entitled,  on  petition,  to  an 
inspection  of  the  accounts  and 
vouchers  of  the  executor,  to  ena- 
ble them  to  answer  the  bill. 
Denning  v.  Smith  and  others,  409 

Vide  COSTS,  I.  7.  II.  8. 
VOL.  III.  64 


EXTINGUISHMENT. 
Of  mortgage,  vide  MORTGAGE,  I.  1. 

F. 

FACTOR. 

Vide   ACCOUNT,  6.     AGENT,  4.  7,  8l 
INTEREST,  4.     JURISDICTION,  5. 

PARTNERSHIP,  7,  8. 

FEME  COVERT. 
Vide   BARON  AND  FEME. 

FORECLOSURE 
Vide  DECREE,  2.     MORTGAGE 

FOREIGN  LAWS. 

1.  Rights  dependent  on  the  nuptial 
contract   are  governed  by  the  lei, 
loci     contractus.     Decouche    and 
others  v.  Savetier  and  others,    190 

2.  A  contract  of  marriage,  executed 
in   Paris,  between   French    citi- 
zens, contained  a  clause    (dona- 
tion mutuelle)  by  which  the  par- 
ties mutually  gave    to  each,  and 
the   survivor,  all    the   estate  and 
property,  acquired  and  purchased, 
or  belonging  to  either,  at  the  time 
of  his  or  her  death,  to  be  enjoyed 
by  the    survivor  exclusively ;  the 
husband  afterwards  abandoned  his 
wife,  and  came  to  reside  in  New- 
York,  where  he  lived  many  years, 
having  acquired  a  large  personal 
estate,  and  died  intestate,  without 
lawful    issue,    leaving    his    wife 
living  in  France.     Held,  that  the 
wife,    as    survivor,   took   all    the 
estate,    under    the    donation,    ac- 
cording to  the  law  of  Frame,  to 

505 


G50 


INDEX. 


the  exclusion  of  the  relations  of 
the  husband ;  and  that  her  legal 
representatives,  after  her  decease, 
were  entitled  to  the  whole,  in- 
cluding not  only  what  originally 
entered  into  communaute  under 
the  contract,  but  the  separate 
property  intended,  in  case  of 
issue  living  at  the  death  of  either, 
to  go  to  the  children,  as  well  as 
the  joint  increase  of  the  common 
stock,  during  the  life  of  the  intes- 
tate, and  the  increase  thereof, 
since  his  death,  in  the  hands  of 
the  administrator.  Dccouche  and 
others  v.  Savetier  and  others,  190 

3.  The  time  of  limitation  of  actions 
depends  on  the  lexfori.  and  not 
on  the  lex  loci  contractus.  ib. 

4.  The  descent  of  personal  property, 
wherever  situated,  must    be  gov- 
erned by  the  laws  of  the  country 
of  the  intestate's  domicil.     S.  C. 

210 

5.  A  discharge  under  the  bankrupt 
law  of  this  country  does  not  dis- 
charge the  debtor  from  debts  con- 
tracted and  made  payable  in  Eu- 
rope, or  a  foreign  country,  unless 
the  foreign  creditors  come  in,  and 
prove  their  debts  under  the  com- 
mission.    M'Mcnomy  v.  Murray 
and  others,  435 

6.  In  all  questions  arising  between 
the  subjects  of  different  states, 
each  is  to  be  considered  as  a  party 
to  the  laws  and  authoritative  acts 
of  his  own  government.  Conse- 
qua  v.  Fanning  and  others,  587 

7.  Interest  is  payable  according  to 
the  laws  of  the  country  where  the 
debt  is  contracted  and  is  to  be 
paid.  ib. 

8  Where  a  Chinese  merchant  con- 
signs goods  to  a  merchant  in 
New-York,  for  sale,  which  are  de- 
livered at  Canton  to  the  agent  of 
the  New-York  merchant,  who 
neglects  to  remit  the  proceeds  to 
the  consignor,  the  latter  is  entitled 
to  interest  on  the  amount,  accord 
506 


ing   to   the   law   and   custom  of 
China,  being  twelve  per  cent,    ib 


FORMA  PAUPERIS. 
Vide  COSTS,  I.  2,  3. 

FRAUDS,   (STATUTE  OF.) 

Memorandum  in  writing  of  an  agree' 
ment. 

1.  A   promise   in    consideration   of 
marriage  must  be  in  writing ;  and 
if  not  reduced  to  writing   before 
the    marriage,  the   defect  cannot 
afterwards  be  supplied,  so   as  to 
impair  the  intervening    rights  of 
third  persons.     lieade  v.  Living- 
ston and  others,  488 

2.  So  a  settlement  after  marriage,  in 
pursuance  of  a  parol    agreement 
entered  into  before   marriage,  is 
not  valid  as  against  prior  creditors. 

ib. 

3.  But  a  settlement  after  marriage, 
in  pursuance  of  a   valid  written 
agreement    before     marriage,    is 
good.  ib. 

4.  Though  a  settlement    after   mar- 
riage   recites    a  parol    agreement 
entered    into    before  marriage,  it 
seems,   that  it  would  not,  there- 
fore, be  valid  against  creditors,  ib. 

FRAUDULENT     CONVEYANCE. 

1.  Under  the  third  section  of  the  act 
to  prevent  frauds  (sess.  10.  c.  44. 
27  Eliz.  c.  4.)  which  was  intended 
to  protect  bona  Jide  purchasers, 
a  purchaser  for  a  valuable  con- 
sideration, without  notice,  from  a 
fraudulent  or  voluntary  grantee, 
will  be  preferred  to  a  subsequent 
purchaser,  for  a  valuable  consid- 
eration, without  notice.  Roberts 
and  Boyd  v.  Anderson,  371 


I  N  D  E  X  . 


2.  The  first  purchaser  has  the  pref- 
erence, whether  he  takes  his  con- 
veyance from  the  grantor  or 
grantee.  ib. 

3  Under   the    first    section    of    the 
statute,  (sess.  10.  c.  44.  13  Eliz. 
c.  5.)  which  was  made  to  protect 
creditors,  a  fraudulent  conveyance 
by  a  debtor  is  utterly  void  as  to 
creditors,  unless  made,  for  a  valu- 
able consideration,  to  a  bonajide 
purchaser,  without  notice  of  the 
fraudulent  intent.  ib. 

4  But  a  bonajide  purchaser  from  a 
fraudulent    grantee    acquires    no 
title,  by  the  conveyance,  against 
the    creditors   of    the    fraudulent 
grantor.  ib. 

5.  A  debtor  in  failing  circumstances, 
or  insolvent,  may,  bonajide,  pre- 
fer    one     creditor     to     another. 
M'Menomy     v.     Roosevelt     and 
others,  440 

S.  P.  M'Menomy  v.  Murray  and  others, 

444 

6.  A  conveyance  by  a  debtor  of  his 
property    to    secure    a    bona  Jide 
creditor,    executed    prior    to   the 
1st  of  June,  1800,  though  made 
in   contemplation  of  bankruptcy, 
is    valid,   not     being    within    the 
purview  of  the  bankrupt  law  of 
the  4th  of  April,  1800,  which  did 
not  go  into  operation  until  after 
the  1st  of  June  following ;  nor  is 
it     fraudulent     at    common    law. 
M'Menomy  v.  Roosevelt  and  others, 

446 

7.  A   settlement   after  marriage,  in 
pursuance  of  a  parol  agreement 
entered  into  before    marriage,   is 
not  valid.     Reade  v.  Livingston 
and  others,  481 

8.  Aliter,  if  made  in  pursuance  of  a 
written    agreement    prior    to   the 
marriage.  ib. 

9.  Though  a   settlement  after  mar- 
riage recites  a    parol    agreement 
entered  into    before    marriage,  it 
seems  that  it  is  not  therefore  valid 
against  creditors.  ib. 


10.  A  voluntary  settlement  after  mar 
riage,    by    a    person    indebted   at 
the  time,   is  fraudulent  and   void 
against  all  such   antecedent  cred- 
itors ;   and  that  without  regard  to 
the  amount  of  the  existing  debts, 
or  the  extent  of  the  property  set- 
tled, or  the  circumstances  of  the 
party.  id. 

11.  But  with  regard  to  debts  arising 
subsequent  to   the    settlement,  it 
seems    that    the    presumption    of 
fraud,  arising    in    law,    from   the 
party's  being  indebted  at  the  time, 
may  be  repelled  by  circumstances, 
as  that  the  antecedent  debts  were 
secured  by  mortgage,  or  were  pro- 
vided for  in  the  settlement.        ib. 

12.  And  if  the  presumption  of  fraud  is 
not  so  repelled,  it  seems  that  sub- 
sequent   creditors    may    impeach 
the  settlement,  by  showing  ante- 
cedent debts  sufficient  in  amount 
to  afford  reasonable  evidence  of  a 
fraudulent   intent ;  for  as  on  the 
one  hand,  showing  an  antecedent 
debt,  however  small  or  trifling,  is 
not  sufficient  to  make  the  settle- 
ment fraudulent  and  void,  so,  on 
the  other,  the   subsequent  credit- 
or, to  impeach  it,  is  not  obliged 
to  prove  that  the  party  was  abso- 
lutely insolvent  at  the  time.        ib. 

13.  When  a    voluntary  settlement    is 
set   aside    as    against    antecedent 
creditors,     subsequont     creditors 
will  be  allowed  to  come  in  for  sat- 
isfaction  of  their    debts.     S.    C. 

49'T 

14.  Under  the  13th  Eliz.  c.  5.  (sess. 
10.  c.  44.  §  3.)  there  is  a  distinc- 
tion between  prior  and  subsequent 
creditors,  in  regard  to  voluntary 
settlements.     S.  C.  50CJ 

15.  A   settlement   is  not  void,  as  of 
course,    against  the  latter,  when 
there  were  no  prior  debts  at  the 
time.  ib. 

16-  A  voluntary  deed  not  delivered  to 
the  grantee,  and  kept  concealed 
from  the  public  for  near  eighteen 
507 


INDEX. 


years,  during  which  time  the  grant- 
or remained  in  possession  of  the 
premises,  as  owner,  cannot  be  set 
up  against  a  third  person  dealing 
with  the  grantor  as  owner,  although 
he  may  have  heard  of  the  existence 
of  the  deed,  at  the  time  he  took 
his  mortgage.  Ferine  v.  Dunn, 

508 

17.  But  the  grantee,  being  the  heir  at 
law  of  the  grantor,  has  a  right  to 
redeem.  ib. 

Vide  BANKRUPT,  1 .  5. 


H. 

HEIR. 

1.  An    equitable     interest    in    land, 
founded  on  articles  of  agreement, 
if  undevised,  passes  to  the  heir; 
and  the   executor   must   pay  the 
purchase    money  for    the    benefit 
of    the     heir.     Livingston     and 
others  v.  Newkirk  and  Wife,  312 

2.  Where    a    deed    to    the    testator 
comes  into  the  possession  of  the 
executor,  who  does  not   produce 
it    or   account   for   its   loss,   the 
most  favorable  intendment,  as  to 
its  contents,  will  be  made  for  the 
benefit  of  the  heir.  ib. 

Infant  heir,  vide  DECREE,  2. 
Vide  MORTGAGE,  I.  12. 

HUSBAND  AND  WIFE. 
Vide  BARON  AND  FEME. 


I. 


IDIOT  AND  LUNATIC. 

A  committee  of  a  lunatic  is  enti- 
tled to  an  allowance,  by  way  of 
compensation  of  his   services,  in 
508 


receiving  and  paying  out  moneys, 
within  the  equity  of  the  statute, 
(sess.  40.  c.  25.)  authorizing  this 
Court  to  make  a  reasonable  allow- 
ance to  guardians,  executors  and 
administrators,  for  their  services. 
In  the  Matter  of  Roberts,  43 

2.  In  the  management  of  a  lunatic's 
estate,  the  interest  of  a  lunatic  is 
more    regarded    than  the  contin- 
gent interest  of  those  who  may  be 
entitled    to    the    succession ;  and 

'  the  Court,  if  it  be  for  the  interest 
of  the  lunatic,  will  direct  timber 
on  the  land  of  the  lunatic  to  be 
sold.  In  the  Matter  of  Salisbury, 

347 

3.  So  the  real   estate  may  be    con- 
verted into  personal,  or  personal 
into  real,  if  for  the  benefit  of  the 
lunatic.  ib. 

4.  On  the  petition  of  a  lunatic  to  su- 
persede   the  commission,  and    to 
be  restored  to  his  estate,  on   his 
recovery,    the    Court   will    either 
order  it  to  be  referred  to  a  master, 
to  take  proof  as  to  the  allegations 
in   the    bill,  and  to  examine  the 
lunatic,   if  he  thinks  fit,  and   to 
report  the  proof,  and  his  opinion 
thereon,  or  direct  the  lunatic  him- 
self to  attend  in  Court,  to  be  ex- 
amined   by   the    chancellor.      In 
the  Matter  of  Hanks,  567 

INCUMBRANCE. 

Vide  MORTGAGE. 

INFANT. 

1.  Where  the  fund  was  clear,  and 
the  rights  of  the  respective  parties 
ascertained,  the  Court  directed, 
pending  the  account,  apart  of  the 
money?  to  be  paid  to  the  solicitor 
of  infant  plaintiffs,  towards  further 
defraying  the  past  a  id  future 
expenses  of  the  suit,  and  the  in- 
terest on  the  residue  of  the  portion 


INDEX. 


653 


coming  to  such  infants,  to  be  paid 
to  their  mother,  for  their  neces- 
sary maintenance  and  education. 
Methodist  Episcopal  Church  and 
others  v.  Jaques  and  others,  1 

2.  Where  a  man  was  married  to  an 
infant  under  12  years  of  age,  who 
immediately    declared    her    igno- 
rance of  the  nature    and  conse- 
quences of  the  marriage,  and  her 
dissent  to  it ;  the  Court,  on  a  bill 
filed  by  her  next  friend,  ordered 
her  to  be  placed  under    its   pro- 
tection, as  a  ward  of  the  Court, 
and  forbade  all  intercourse  or  cor- 
respondence with  her  by  the  de- 
fendant, under  pain  of  contempt. 
Ay  mar  v.  Roff",  49 

3.  There    can    be    no    valid    decree 
against  an  infant,  by  default,  nor 
on  his  answer  by  his   guardian ; 
but  the  plaintiff  must   prove   his 
demand    in    Court,   or    before    a 
master,  and  the  infant  will   have 
a  day  in  Court,  after  he  comes  of 
age,  to  show  error  in  the  decree. 
Mills  v.  Dennis  and  others,      367 

4  But  if,  instead  of  seeking  a  fore- 
closure of  the  mortgage  against 
the  infant  heir  of  the  mortgagor, 
there  is  a  decree  for  the  sale  of  the 
mortgaged  premises,  the  decree 
will  bind  the  infant.  ib. 

5.  A  sale  is  the  most  usual  course, 
as  being  the  most  beneficial  to 
both  parties.  ib. 

6  But  before  a  decree  for  the  sale, 
there  must  be  a  special  report  of 
a  master,  of  the  proof  of  the  debt 
before    him,  of  the  amount  due, 
and  of  what  part,  if  less  than  the 
whole,  of  the  mortgaged  premises, 
a   sale  will  be  sufficient  to  raise 
the   amount  of  debt,  and  at   the 
same  time  be  most  beneficial   to 
the  infant.  ib. 

7  The  Court  may  change  the  estate 
of  infants,  from  real  into  personal, 
and  from  personal  into  real,  when- 
ever it  deems  such  a  proceeding 
most    beneficial    to    the     infant. 
S.  C.  370 


INJUNCTION. 

I.  Injunction  to  stay  waste  or  trespass 
II.  Injunction  to  stay  proceedings  a; 
law. 

III.  Injunction  for  other  purposes. 

IV.  Dissolving  injunction. 

I.  Injunction  to  stay  waste  or  trespass. 

1.  On  affidavits  of  a  breach  of  an  in- 
junction to  stay  waste,  and  of  per- 
sonal   service    of  a   copy   of  the 
affidavits,    and    of  notice   of  the 
motion,  an  attachment    was    or- 
dered to  bring  up  the  defendant 
to    answer      for     the     contempt. 
Schoonmaker  v.  Gillet,  311 

II.  Injunction  to  stay  proceedings  at 
law. 

2.  On  a  bill  of  discovery  for  matters 
material   to   the    defence   of  the 
party  in  a  suit  at  law,  the  nature 
of  the    defence  at    law  must    be 
stated,  otherwise   this  Court  will 
not  grant  an   injunction.     M'ln- 
tyre   and  others  v.  Mancius  and 
Brown,  45 

Vide  LOAN-OFFICERS,  3. 

III.  Injunction  for  other  purposes. 

3.  Where  the  bill  charges  an  execu- 
tor  or   trustee  with    abusing   his 
trust,  &.C.,  an  injunction  will  no' 
be  awarded  in  the  first  instance, 
but  a  receiver  may  be  appointed. 
Boyd  and  Wickham  v.  Murray, 

48 

4.  Where   the   testator    devised    his 
real   and    personal    estate    to   his 
executors,  for  the  payment  of  his 
debts  ;  on  a  bill  for  an  account  sta- 
ting, that  the  executors  refused  10 
distribute  the  personal  estate,  and 
to  sell  and  distribute  the  proceeds 
of  the  real  estate   ratably  among 
the    creditors,  and   threatened  to 

509 


551 


INDEX. 


transfer  it  to  secure  certain  fa- 
vorite creditors,  who  were  enti- 
tled to  no  preference  at  law  or  in 
equity,  the  Court  granted  an  in- 
junction to  restrain  the  executors 
from  selling  or  disposing  of  the 
estate.  Depau  v.  Moses  and 
others,  349 

5.  The  apprehension  of  one  partner 
that  the  other  will  misapply  the 
partnership  funds,  and  abuse  his 
trust,  is  not  a  ground  for  an  in- 
junction to  restrain  him  from  in- 
terfering with  the  partnership  ac- 
counts and  effects.  Woodward 
v.  Schatzel  and  others,  415 


IV.  Dissolving  Injunction. 

6.  A  creditor  filed  a  bill  to  set  aside, 
or  to  obtain  relief  against,  a  judg- 
ment confessed  by  his  debtor  in 
the  Supreme  Court,  on  the  ground 
of  fraud,  and  obtained  an  injunc- 
tion to  stay  all  proceedings  on  the 
judgment ;  and  while  the  suit  was 
pending  in  this  Court,  he  pro- 
ceeded at  Jaw,  and  recovered 
judgment  against  his  debtor,  and 
issued  execution  thereon,  under 
which  the  property  of  the  debtor 
was  advertised  for  sale.  The 
Court  refused  to  dismiss  the  bill, 
on  the  petition  of  the  defendants  ; 
but  ordered  the  plaintiff  to  make 
his  election,  either  to  stay  his  ex- 
ecution at  law  during  the  contin- 
uance of  the  injunction,  or  con- 
sent to  have  the  injunction  dis- 
solved ;  and  the  plaintiff  refusing 
to  make  an  election,  the  injunc- 
tion was  forthwith  dissolved. 
Livingston  v.  Kane  and  others, 

224 

INSURANCE 

Where  (?.,  being  about  to  depart  from 
New- York  on    a    voyage   to   the 
East  Indies,  gave  an  order  for  in- 
surance on  his  life  to  the  amount 
510 


of  3,000  pounds  sterling,  which 
was  accepted  by  the  Insurance 
Company  in  London,  and  the 
agents  of  M.,  who  undertook  to 
complete  the  business,  paid  the 
premium  for  one  year,  and  re- 
ceived the  policy  for  that  amount, 
to  continue  for  10  years,  at  the 
election  of  G. ;  but  M.  afterwards, 
alleging  that  there  was  a  mistake, 
without  the  knowledge  or  consent 
of  G,,  procured  this  policy  to  be 
cancelled  by  the  insurers,  and 
another  policy  to  be  executed  by 
them  for  450  pounds,  the  differ- 
ence of  premium  being  refunded 
by  the  insurers  :  it  was  held,  that 
M.,  by  thus  procuring  a  valid  and 
existing  contract  of  insurance  to 
be  cancelled,  substituted  himself 
for  the  insurers,  and  was  answer- 
able to  the  legal  representative  of 
G.,  who  died  within  a  year,  for 
the  amount  insured  by  the  origi- 
nal policy,  after  deducting  the 
premium.  Gray  v.  Murray,  167 


INTEREST. 

1.  Unsettled    accounts  do   not    bear 
interest.     Conscqua    v.    Fanning 
and  others,  587 

2.  Where  a  balance  of  an  account  is 
paid  without  any  charge  of  inter- 
est, interest  cannot  afterwards  be 
demanded.  ib. 

3.  Interest  is  payable  according   to 
the  laws  of  the  country  where  the 
debt  is  contracted,  and  is  to  be 
paid.  ib. 

4.  Where  a  Chinese  merchant  con- 
signs  goods    to     a   merchant    in 
New-York  for  sale,  which  are  de- 
livered at  Canton  to  the  agent  of 
the    New-York    merchant,    who 
neglects  to  remit  the  proceeds  to 
the  consignor,  the  latter  is  enti- 
tled to  interest  on  the  amount,  ac- 
cording to  the  law  and  custom  of 
China,  being  twelve  per  cent.   ib. 


INDEX 


653 


J. 


JUDGMENT. 

I  Though  a  judgment  at  law  may 
be  impeached  in  this  Court  for 
fraud,  yet  this  Court  will  never 
interfere  with  a  judgment  at  law 
on  the  ground  of  irregularity ;  but 
the  record  of  the  judgment,  and 
execution,  and  title  under  them, 
are  a  conclusive  bar  in  equity. 
It  belongs  to  the  Court  of  law,  ex- 
clusively, to  inquire  into  the  reg- 
ularity of  its  judgment.  Shotten- 
kirk  and  others  v.  Wlicelcr  and 
others,  275 

2.  It  seems  that  a  Court  of  law  will 
not  set  aside  a  judgment  after  a 
lapse  of  20  years,  on  the  ground 
of  irregularity.  ib. 

JURISDICTION. 

1.  A  Court  of  Chancery  does  not  in- 
terfere  to   prevent   or   remove    a 
private    nuisance,    unless    it   has 
been  erected  to  the  annoyance  of 
the  right  of  another,  long  previ- 
ously enjoyed.      Van   Bergen    v. 
Van  Bergen,  282 

2.  It  must  be  a  case  of  strong  and 
imperious  necessity,  or  the  right 
previously  established  at  law,  be- 
fore the  party  is  entitled    to  the 
aid  of  this  Court.  ib. 

3.  After  a  trial  at  law,  or  a  report  of 
referees,  a  party  cannot  have  the 
aid  of  this  Court,  unless  he  can 
impeach  the  justice  of  the  verdict 
or  report,  by  facts,  or  on  grounds 
of  which  he  could  not  have  availed 
himself  before,  or  was  prevented 
from  doing  it  by  fraud  or  accident, 
or  by  the  act  of  the  opposite  party, 
without  any  negligence   or    fault 
on    his   part.     Duncan  v.   Lyon, 

351 

4.  Equity  has  not  an  exclusive  juris- 
diction   between    copartners     in 
matters  of  account.     S.  C.      360 


5.  M.  4*  T.  being  owners,  ir:  certain 
proportions,  of  goods  lying  at 
Cadiz ,  M.  consigned  the  whole  to 
T*  of  P.  for  sale,  on  their  joint 
account,  according  to  their  re- 
spective interests ;  and  T.  put  the 
goods,  with  the  invoice  and  bill 
of  lading,  into  the  hands  of  B.  fy 
C.,  partners  in  trade  here,  to  sell : 
Held,  that  B.  tip  C.  could  not  retain 
the  proceeds  in  their  hands  to 
satisfy  a  demand  of  B.  against  M. 
That  T.,  as  part  owner,  and  as 
factor  and  agent  of  M.,  the  other 
part  owner,  might  maintain  an 
action  in  his  own  name  against 
B.  4*  £*•  f°r  the  proceeds ;  ana 
that  the  defendants  could  not  set 
off  against  the  plaintiff  the  separ- 
ate demand  of  B.  against  M.,  es- 
pecially when  that  demand -was 
for  damages  arising  from  the  al- 
leged negligence  and  misconduct 
of  M.,  which  were  the  proper  sub- 
ject of  a  distinct  suit,  and  of  legal, 
not  of  equity  jurisdiction ;  and 
that  B.  4*  C.  having  received  the 
goods  for  sale,  as  agents  of  T., 
with  full  knowledge  of  his  rights, 
and  of  the  capacity  in  which  he 
acted,  and  without  giving  him 
notice  at  the  time  of  the  claim 
of  B.  against  J/.,  were  not  en- 
titled to  the  aid  of  this  Court  in 
their  defence  of  the  suit  of  T. 
against  them  at  law.  Murray 
v.  Toland  and  Meade,  569 

Vide  DISCOVERY.  JUDGMENT,  1.  NE 
EXEAT  REPUBLICA.  PLEADING, 
IV.  20.  SET-OFF. 


L. 

LACHES  AND  LENGTH  OF 
TIME. 

1.  Twenty    years    possessicn    by    a 
mortgagee,  without  any  account, 
or  acknowledgment  of  a  subsist* 
511 


656 


INDEX. 


ing  mortgage,  is  a  bar  to  all  equi- 
ty of  redemption,  unless  the  mort- 
gagor can  bring  himself  within 
the  proviso  in  the  statute  of  limit- 
ations, the  construction  of  which 
is  the  same  in  equity  as  at  law. 
Demarest  and  Wife  v.  Wynkoop 
and  others,  129 

2.  The    disability    that   entitles    the 
party  to  the  benefit  of  the  proviso, 
must  be  existing  at  the  time  the 
right    first    accrues,   so    that,   if, 
during  the   ten  years  allowed  to 
an  infant,  a  subsequent  disability, 
as  coverture,  arises,  the  time  con- 
tinues   to     run,    notwithstanding 
such  second  disability.  ib. 

3.  Successive  or  cumulative  disabili- 
ties are  riot  within  the  policy,  or 
a  settled  and  sound  construction 
of  the  statute.  ib. 

4.  Right   to   redeem  in  equity,  and 
right  of  entry  at   law,  are  analo- 
gous.    S.  C.  135 

5.  The   construction    of  the  statute 
of  limitations  is  the  same  in  equi- 
ty as  at  law.     S.  C.  136 

6.  No  lapse  of  time  is  a  bar  to  a  di- 
rect trust,  as  between  trustee  and 
cestuy    que    trust.       Decouche    v. 
Saveticr  and  others,  ,      190 

S.  P.     Goodrich  v.  Pcndltton,        390 

7.  Therefore,  an  administrator,  being 
a  trustee,  cannot  set  up  the  stat- 
ute of  limitations  in   bar   to   the 
next  of  ';in,  or  persons  entitled  to 
the    distribution    of    the    assets. 
Durwifhr   nnd  others  v.  Savetier 
and  otutn,  190 

8.  But  where  a  person  takes  posses- 
sion of  property  in  his  own  right, 
and  is,   afterwards,  by  matter  of 
evidence  or  construction,  changed 
into  a  trustee,  lapse  of  time  may 
be  pleaded  in  bar.  ib. 

9.  An    executor    cannot    plead   the 
statute  of  limitation?  in  bar  to  a 
legacy,  though  he  may  against  a 
creditor.  ib. 

10.  The  time  of  limitation  of  actions 
depends  on  the  lexfori,  and  not 
on  the  lex  loci  contractus.  ib. 

512 


11.  Where  an  executor  puts  bonds 
and  notes  due  to  the  testator,  into 
the  hands  of  an  attorney  to  col- 
lect, and  after  the  death  of  the 
executor,  the  attorney  collected 
the  money,  and  applied  it  to  hia 
own  use,  and  became  insolvent : 
Held,  that  the  estate  of  the  exec- 
utor was  not  chargeable  with  the 
loss,  especially  after  a  lapse  of 
more  than  six  years.  Rayner  and 
others  v.  Pearsall  and  others,  578 

Vide  COSTS,  I.  5.  EXECUTOR  AND  AD- 
MINISTRATOR, III.  27,  28.  PLEAD- 
ING, IV.  22,  23. 


LAW. 

Action  at  law,  vide  ACTION. 

Election  to  proceed  at  law  or  in  equity, 
vide  ELECTION. 

General  principle  of  law,  vide  FOREIGN 
LAWS,  6. 

Foreign,  vide  FOREIGN  LAWS. 

LEGACY 

1.  Where  there  are  several  legacies 
given,  which  are  to  be  increased 
or  diminished,  as  the  estate  should 
increase  or  diminish,  one  legatee 
may  file  a  bill  in  behalf  of  him- 
self, and  the  other  legatees  who 
may  choose   to  come   in,  against 
the    executors,    for    an    account 
and  payment.    Brown  v.  Ricketts, 

553 

2.  But  when  the  bill  is  for  the  resi- 
due,   all    the    residuary    legatees 
must  be  made  parties.  ib. 

3.  Where   the   plaintiff,  in  his  bill, 
sets  up  a  claim,  independent  of  the 
will,  to  part  of  the  property  de- 
vised in  trust  to  pay  the  legacies, 
he  must  elect  to  waive   his  claim, 
or   wait   until   it  be    determined, 


INDEX. 


6 


before  he  can  call  for  an  account, 
or  payment  of  part  of  his  legacy. 

ib. 

Vide   BARON  AND  FEME,  11,  12,   13. 


LEGAL  ESTATE. 
Vide  MORTGAGE,  I.  1. 

LEX  LOCI. 
Vide  FOREIGN  LAWS. 

LIEN. 

* 

Of  factor,  vide  PARTNERSHIP,  8. 

LIFE. 

Insurance  on,  vide  INSURANCE. 

LIMITATION  OF  ACTION. 

Vide  FOREIGN  LAWS,  3.    LACHES  AND 
LENGTH  OP  TIME. 

Plea  of  the  statute  of  limitations,  vide 
PLEADING,  IV.  22,  23. 

LOAN-OFFICERS. 

1.  Though  by  the    act  authorizing 
the  loan  of  money,  fyc.  (sess.  31. 
c.  216.)  the  mortgagor,  after  a  de- 
fault of  payment,  loses  all  equity 
of  redemption,  and  the  commis- 
sioners become  seised  of  an  ab- 
solute estate  in  the  premises ;  yet 
the    commissioners    are    trustees 
for  the  people,  to  the  amount  of 
the   mortgage  debt  and   interest, 
and  for  the  mortgagor,  in  respect 
to   the  surplus ;   and  the  mortga- 
gor, as  well  as  the  people,  has  a 
right  to  demand  of  the  commis- 
sioners a  faithful  execution  of  the 
trust.       Denning    and    others    v. 
Smith  and  others,  332 

2,  The  notice  of  sale,  according  to 
the   true  construction  of  the  act, 

VOL.  III.  65 


must  continue  to  be  Jfrxcd  up  at 
three  public  places,  and  be  ad- 
vertised in  a  public  newspaper  of 
the  county,  from  eight  days  after 
the  4th  Tuesday  of  May,  to  the 
3d  Tuesday  of  September,  or  the 
time  of  sale.  ib. 

3.  And   where,  on   a  default  of  the 
mortgagor,      the      commissioners 
caused    the    mortgaged   premises 
to   be    sold,    without  giving    due 
public    notice  of  the  sale,  pursu- 
ant to  the  act,  and  under  circum- 
stances denoting  fraud  and  collu- 
sion,  on   the  part  of  one  of  the 
commissioners,  the    sale  was   set 
aside,  and  the  deed  executed   by 
the  commissioners  ordered   to  be 
delivered     up    to    be   cancelled ; 
and  the  proceedings  in  an  action 
of  ejectment  brought  by  the  pur- 
chaser, to  be  stayed  by  a  perpet- 
ual injunction.  ib. 

4.  The  notices  of  sale   required  by 
the  act   to  be  fixed  up  in  three 
public    places,    mean    that    they 
should  be  put  up  in  those  places 
best  calculated  to  bring  home  the 
notice  of  sale   to  the  mortgagor, 
and  to   all  persons  who  are  most 
likely   to   attend    as    purchasers. 
S.  C.  339 

5.  Three  weeks'  notice  is  not   suffi- 
cient. S.  C.  341 

6.  The  notice  must  contain  the  name 
of  the  mortgagor,  and  an   accu- 
rate   description   of  the   quantity 
and    situation    of  the    land    fore- 
closed, and  to  be  sold.  S.  C.    342 

7.  If  the  commissioners  abuse  their 
trust,  this  Court  will  afford  relief, 
either  by  setting  aside   the  sale, 
and    letting  in  the  mortgagor   to 
redeem,  or  directing  the  commis- 
sioners to  account  for  the  differ- 
rence  between  the  sum  for  which 
the    land    was  sold,  and    its  real 
value  at  the  time.  S.  C.  343 

LUNATIC. 

Vide  IDIOT  AND  LUN*  nc. 
513 


658 


>  N  D  E  X. 


M. 

MAINTENANCE. 

Advancing  money  to  a  poor  man  to 
enable  him  to  prosecute  his  suit, 
is  not  maintenance.  Ferine  v. 
Dunn,  508 

MARRIAGE. 

1.  Where  a  man  was  married  to  an 
infant  under  12  years  of  age,  who 
immediately    declared    her    igno- 
rance of  the  nature    and   conse- 
quences of  the  marriage,  and  her 
dissent  to  it,  the  Court,  on  a  bill 
filed   by  her  next  friend,  ordered 
her   to  be   placed   under   its  pro- 
tection,  as   a  ward  of  the  Court, 
and    forbade    all    intercourse    or 
correspondence   with  her  by   the 
defendant,    under    pain    of   con- 
tempt.    Ay  mar  v.  Rojf,  49 

2.  Rights  dependent  on  the  nuptial 
contract  are  governed  by  the  lex 
loci   contractus.      Dccouche    and 
others  v.  Saveticr  and  others,   190 

3.  Marriage  is  a  good,  valuable,  and 
meritorious    consideration  for    an 
ante-nuptial  contract.    Bradish  v. 
Gibbs  and  others,  550 

Marriage  settlement,  vide  BARON  AND 
FEME,  1,  2,  3,  4,  5,  6,  7.  14,  15, 
16.  18.  FRAUDS,  (STATUTE  OF.) 

Vide  FOREIGN  LAWS,  1,  2. 

MARSHALLING  ASSETS. 

Vide  EXECUTOR  AND  ADMINISTRATOR, 
II.  23.  MORTGAGE,  1.  6  8, 
9.  10. 

MASTER. 
Reference  to,  vide  APPEAI    1,  2. 

MERGER. 

Vide  MORTGAGE,  7    1. 
514 


MILL. 

Vide  NUISANCE,  3,  4. 

MORTGAGE. 

I.   Of  the  mortgage  generally. 
II.  Equity  of  redemption,  foreclosure 
and  sale. 

I.   Of  the  mortgage  generally. 

1.  Where  the    equitable    and    legal 
estate  are  united  in  the  same  per- 
son, the  former  is  merged  in  the 
latter ;    as   where   the   owner   of 
an  equity  of  redemption  pays  off 
a  subsisting  mortgage,  and  takes 
an  assignment  of  it,  it  will  be  in- 
tended, that  he  does  it  to  exon- 
erate his  estate  from   the  encum- 
brance, and  that  the  mortgage  is 
extinguished  unless  it  is  made  to 
appear  that  he  has  some  benefi- 
cial interest  in  keeping  the  legal 
and     equitable    estates     distinct. 
Gardner  v.  Astor,  53 

2.  A  feme  covert  may  mortgage  her 
separate    property    for    her    hus- 
band's debts.    Demarest  and  Wife 
v.  Wynkoop  and  others,  129 

3.  So  she  may  also  execute  a  valid 
power    to    sell    the    property,    in 
case  of  default,  pursuant  to  the 
statute.  ib. 

4.  In   a  mortgage  by  husband   and 
wife,  of  the  wife's  separate  estate, 
the  wife  may,   if  she   choose,  re- 
serve   the    equity   of  redemption 
to  the   husband  alone,  who   may 
sell  and  dispose  of  it.  ib. 

5.  A  mortgage   /nterest,  before  fore- 
closure, is  a  chattel,  and  person 
al  assets  ^iclonging  to  the   exec 
utor.     S   C.  145 

6.  As   betv-een    the    representatives 
of  the  7-sal    and   personal    estate, 
the  lan-(   is  the  primary  fund    to 
pay   oft   a   mortgage.     Duke   of 
Cumberland  and  others   v.    Cod- 
ringtun  and  others ,  252 


INDEX. 


7.  Where  a  nan  gives  a  bond  and 
mortgage  for  his   own    debt,  the 
mortgage    is    merely  a   collateral 
security.     S.  C.  257 

8.  But  if  a  purchaser  or  devisee  of 
land  encumbered,  renders  himself 
personally  liable  to   the    creditor 
for   payment,  the  land,  as  far    as 
relates     to    the    marshalling    of 
assets,  is    the    primary    fund    for 
payment.  ib. 

9.  Unless  a  contrary  intent  be  clear- 
ly shown.  ib. 

10.  The  purchaser,  by  express  direc- 
tions in  his  will,  may  throw  the 
encumbrance  upon    his   personal 
assets,  or  by  dispositions  and  lan- 
guage   equivalent   to    an   express 
direction.     S.  C.  272 

11.  A   voluntary    deed   not  delivered 
to  the  grantee,  and   kept  conceal- 
ed from  the  public,  for  near  eigh- 
teen   years,    during    which    time 
the  grantor  remained    in   posses- 
sion of  the   premises,  as   owner, 
cannot  be  set  up  against  a  third 
person  dealing  with  the  grantor, 
as  owner,  although  he  may  have 
heard  of  its  existence   at  the  time 
he  took  his  mortgage.     Ferine  v. 
Dunn,  508 

12  But  the  grantee,  being  the  heir  at 
law  of  the  grantor,  has  a  right  to 
redeem.  ib. 


i -...  Equity  of  redemption,  foreclosure, 
and  sale. 

13.  Where,  on  a  bill  to  foreclose  a 
mortgage,  a  subsequent  mortga- 
gee, or  judgment  creditor,  who 
if  made  a  party  defendant,  an- 
swers and  disclaims,  he  is  entitled 
to  costs  against  the  plaintiff,  to  be 
paid  out  of  the  fund,  if  that  is 
sufficient,  and  if  not,  to  be  paid 
by  the  plaintiff;  he  not  having 
applied  to  such  defendant  before 
cuit  brought,  to  release,  or  other- 
wise disclaim.  Catlin  v.  Horned 
others,  61 


14.  Where  the  statute  directs  the  ad- 
vertisement for  the  sale  of  mort- 
gaged  premises    to  be  published 
"once  a  week,  for  six  successive 
months,"     lunar,     not     calendar 
months  are  intended.    Stackhoust 
v.  Halsey,  74 

15.  Twenty   years'    possession    by    a 
mortgagee,  without   any  account, 
or  acknowledgment  of  a  subsist- 
ing mortgage,  is  a  bar  to  all  equi- 
ty   of    redemption,     unless     the 
mortgagor  can  bring  himself  with- 
in the   proviso  of  the  statute  of 
limitations,    the    construction    of 
which  is  the  same  in   equity   as 
at   law.     Demurest  and  Wife  v. 
Wyn/coop  and  others,  129 

16.  A  sale  of  mortgaged  premises  at 
public  auction,  by  a  surviving  ex- 
ecutor of  the  mortgagee,  accord- 
ing to  the  statute,  is  a  complete 
bar  to  the  equity  of  redemption. 

ib. 

17.  And  where    the  sale  was  regular 
and  fair,  but  the  deed  of  the  ex- 
ecutor produced,  was  dated  nine- 
teen years  after  the  time  of  sale, 
it  was  presumed  that  a  deed  was 
duly  given  at  the  time,  and  lost, 
and  that  the  one   produced   was 
executed  for  greater  caution,     ib. 

18.  But,     as    between     the    parties, 
where    there    is     no   intervening 
right,  such  a  deed  will  take  «ffect 
by  relation,  from  the  time  of  the 
conclusion    of  the    bargain    and 
sale,    especially    in    a    Court   of 
equity.  ib. 

19.  In  a  mortgage   by   husband   and 
wife,  of  the  wife's  separate  estate, 
the  wife  may,  if  she  choose,  re- 
serve the  equity  of  redemption  to 
the  husband    alone,  who  may  sell 
and  dispose  of  it.  ib. 

20.  And   a  sale  by  the   mortgagee,  or 
his  executors,  under  a  power  con- 
tained in  the  mortgage,  pursuant 
to  the  statute,  is   a  valid   bar  to 
the  equity  of  redemption.  ib. 

21.  Where  the   statute  makes  no  ex- 
ception, this  Court  will  make  none, 

515 


660 


INDEX. 


in  favor  of  infants ;  but  their 
equity  of  redemption  is  barred  by 
the  sale.  S.  C.  146 

22.  The  practice  of  the  English  chan- 
cery, of  opening  biddings   at  the 
master's  sales,  has  not  been  adopt- 
ed here.     Williamson  v.  Dale  and 
others,  290 

23.  But   where    the    executors   of    a 
mortgagee  were  innocently  misled, 
and  induced  to  believe,  that  the 
sale  of  the    mortgaged   premises 
would  not  take  place  on  the  day 
appointed,  there   being  no  culpa- 
ble negligence  on  their  part,  the 
Court,  under  the  circumstances  of 
the  case,  ordered  the  sale  to  be 
set  aside,  on  the  ground  of  sur- 
prise, on  the  defendant's  paying  to 
the  purchaser  all  his  costs  and  ex- 
penses, and  the  costs  of  the  appli- 
cation, though  the  sale  was  per- 
fectly   regular   and    fair,   and  no 
unfair   intention  was   imputed  to 
the  mortgagee  or  his  solicitor,    ib. 

24.  On  a  bill  to  foreclose  a  mortgage, 
the  mortgagee  is  confined  to  his 
remedy  on  the  mortgage.     Dunk- 
ley  v.  Van  Buren  and  others,  330 

25.  The  suit  cannot  be  extended  to 
the  other  property,  or  against  the 
person  of  the   mortgagor,  in  case 
the    property   mortgaged     is     not 
sufficient  to  pay  the  debt  for  which 
it  is  pledged.  ib. 

26.  The  mortgagee's  further  remedy 
is  at  law,   where  he   may  sue  at 
the  same  time  on  his  bond,  or  on 
the  covenant,  to  pay  the  money  ; 
and    after    a   foreclosure   of    the 
mortgage  in  equity,   he  may  sue 
on  his  b'ond,  at  law,  for  the  defi- 
ciency, ib. 

27.  It  seems,  that  a  subsequent  suit  at 
law,  to  recover  the  remainder  of 
the  debt  unsatisfied  by  the  sale  of 
the  mortgaged  premises,  does  not 
open   the   foreclosure,  and  revive 
the  equity  of  redemption.       •    ib. 

28    A  decree  taken  pro  confesso,  on 
a  bill  for  a  foreclosure  of  a  mort- 
gage, after  a  sale,  and  a  delay  of 
516 


more  than  six  months,  will  not  be 
set  aside,  unless  under  very  spe- 
cial circumstances.  Lansing  v. 
M'Phcrson  and  others,  424 

29.  But  the  sale  was  opened,  the  de- 
fendant, who  was  bound   to  make 
good  any  deficiency  on  the  sale, 
offering  50  per  cent,  more  than 
was   bid,  on  condition  of  his  de- 
positing that  advance  with  the  re- 
gister, in  eight  days,   and  paying 
the  expenses  of  the    former  sale. 

ib. 

30.  To   a  bill   for   a    foreclosure  and 
sale   of  mortgaged   premises,   all 
encumbrancers,  or  persons  having 
an  interest,  existing  at  the  com- 
mencement   of   the    suit,    subse- 
quent,  as  well  as  prior,  in  date, 
to  the  plaintiffs   mortgage,  must 
be   made   parties,  otherwise    they 
will  not  be  bound  by  the  decree. 
Haines  and  others  \.  Beach  and 
others,  459 

31.  A  prior  mortgagee,  who  had,  also, 
a  judgment  against  the  mortgagor 
subsequent  to  a  second  mortgage, 
and   on    a   sale  of  the    premises 
under    the   judgment,    had    pur- 
chased the  equity  of  redemption, 
cannot,  on  a  bill  filed  against  the 
second  mortgagee,  compel  him  to 
pay  the  judgment,  as  well  as  the 
first  mortgage,  or  be    foreclosed  ; 
but  the  encumbrancers  are  to  be 
paid    in    the    order   of    time   in 
which    the    respective    liens    at- 
tached, ib. 

32.  A  purchaser  under  a  sale,  by  vir- 
tue  of  a   decree   of  foreclosure, 
will  only  take  a  title,  as  against 
the  parties   to  the  suit ;   and    he 
cannot  set  it  up  against  the  sub- 
sisting equity  of  those  encumbran- 
cers who  are  not  parties.        S.  C. 

464 

Decree  of  foreclosure,  or  for  a  sale 
against  infant  heir,  vide  DECREE, 
2.  INFANT,  3,  4,  5,  6. 

Vide     EXECUTION.      LOAN-OFFICERS 


INDEX. 


66 


N. 

NE  EXEAT  REPUBLICA. 

1 .  To  entitle  a  party  to  a  writ  of  ne 
exeat,  his  debt  or  demand  must  be 
satisfactorily  ascertained  :  a  mere 
declaration  of  belief  of  the  ex- 
istence and  amount  of  his  claim 
is  not  sufficient ;  there  must  also 
be  a  positive  affidavit  of  a  threat 
or  a  purpose  of  the  party  against 
whom  the  writ  is  prayed,  to  go 
abroad,  and  that  the  debt  would 
be  lost,  or  at  bast  in  danger,  by 
his  departure  from  the  state. 
Mattocks  v.  Tremain  and  others, 

75 

tl.  It  seems  that  a  writ  of  ne  exeat 
would  not  be  granted  on  petition 
and  on  motion  only,  without  a  bill 
previously  filed.  ib. 

3.  A  writ  of  ne  exeat  republica  may 
issue  against  a  foreigner,  or   citi- 
zen of  another   state,  and  on   de- 
mands  arising   abroad ;    but    the 
writ   will    be    discharged   on  the 
defendant's     giving     security    to 
abide  the  decree.      Woodward  v. 
Schatzell  and  others,  412 

4.  To   sustain     the    writ,    sufficient 
equity  must   appear  on    the  face 
of  the    bill.     Mere  apprehension 
that  the  defendant  will  misapply 
funds  in  his  hands,  or  abuse  his 
trust,  is  not  sufficient.  'b. 

NEGLIGENCE. 

Agent  or  trustee  personally  liable  for, 
vide  TRUST  AND  TRUSTEE,  II. 


NEWLY-DISCOVERED  EVI- 
DENCE. 

Vide  PLEADING,  II.  9,  10, 11, 12. 

NOTICE. 

1.  Though  a  purchaser  at  a  public 
sale   be   chargeable  with   notice, 


yet  a  bona  Jide  purchaser  undei 
him  is  not  affected  by  his  notice. 
Demarest  and  Wife  v.  Wynkoop 
and  others,  147 

2.  A  purchaser,  claiming  as  a  bona 
Jide  purchaser,  must,  in  his  an- 
swer, positively  and  precisely  de- 
ny notice,  and  every  circumstance 
from  which  it  can  be  inferred, 
although  notice  is  not  charged. 
Denning  and  others  v.  Smith  and 
others,  345 

3.  A  purchaser  for  a  valuable  consid- 
eration,   without   notice,    from   a 
voluntary  or    fraudulent  grantee, 
will  be  preferred   to  a  subsequent 
purchaser  for  a  valuable  consider- 
ation, without   notice,  from    the 
original    grantor.       Roberts    and 
Boyd  v.  Anderson,  377 

4.  The  first  purchaser  for  a  valuable 
consideration,  whether    he  takes 
the  conveyance  from  the  grantor 
or    grantee,     will    be    preferred. 
S.  C.  378 

Vide  USURY,  2. 

Notice  of  sale,  vide  LOAN-OFFICERS, 
2,  3,  4,  5,  6. 

NUISANCE. 

1.  A  Court  of  Chancery  does  not  in- 
terfere  to   prevent  or    remove    a 
private    nuisance,    unless    it    has 
been  erected  to  the  annoyance  of 
the    right  of  another,  long    pre 
viously  enjoyed.      Van   Bergen  v. 
Van  Bergen,  232 

2.  It  must  be  a  case  of  strong  and 
imperious  necessity?  or  the  right 
previously  established  at  law,  be- 
fore the  party  is  entitled  to  the 
aid  of  this  Court.  ib. 

3.  Though  a  person  has  a  right  to 
erect  a  mill  on   his  own   ground, 
yet  he  must  so  exercise  that  right 
as  not  to  interfere  with  the  exist- 
ing rights  of  others.  ib. 

4.  If  A.  erect  a  new  mill,  in  such  a 
place,  or  so  near  the  mill  of  B., 

517 


INDEX. 


that  an  artificial  dam  before  erect- 
ed by  B.  causes  the  water  to  flow 
back  on  A.'s  mill,  and  obstruct 
its  movement,  it  seems  that  A. 
has  no  right  to  complain  of  the 
dam  of  B.  as  a  nuisance.  Van 
Bergen  \.  Van  Bergen,  282 


P. 

PARTITION. 

1  Under  the  act  for  the  partition  of 
lands,  where  the  proceedings  are 
in  this  Court,  it  is  not  necessary 
tor  the  parties  to  execute  mutual 
releases  to  each  other,  according 
to   the   partition ;     but    the   final 
decree   of  the  Court,    that   such- 
"  partition  shall  remain  firm  and 
effectual    forever,"   &c.    is    suffi- 
cient.   Young  and  Wife  v.  Cooper 
and  others,  295 

2  If  any  doubt  arises  on  a  bill  for  a 
partition,  as  to  the  extent  of  the 
undivided  rights  and   interests  of 
the   parties,  the  usual    course    is 
to  direct  a  reference  to  a  master 
to    inquire    and   report  on  them, 
as  the  estate  and  interest  of   the 
parties    must   be   ascertained  be- 
fore a  commission    is   awarded  to 
make  partition.     Phelps  v.  Green 
and  others,  302 

3.  But  where  the  title  i&  suspicious, 
or  litigated,  it  must  first  be  estab- 
lished  at  law  before   this  Court 
will  interfere.  ib. 

4.  Where  the  plaintiff's  right  to  one 
undivided    moiety    was    admitted 
by  all  the  defendants  claiming  the 
other   moiety,    but   they   differed 
among  themselves  as  to  their  titles 
and    interests,    some   of   the   de- 
fendants     claiming     the     whole 
moiety    in    fee,    and    the    others 
claiming    and    enjoying    separate 
portions   of    it,   and    asserting    a 
freehold  estate  therein,  the  Court 
ordered  partition  to  be  made  be- 

518 


tween  the  plaintiff  and  all  the 
defendants  aggregately  ;  dividing 
the  premises  into  two  equal  moie- 
ties, so  as  to  give  one  moiety  to 
the  plaintiff  in  severally,  and 
leaving  the  other  moiety  to  be 
divided  between  the  defendants, 
on  a  further  application  to  the 
Court,  when  their  conflicting 
claims  should  have  been  estab- 
lished at  law  ;  the  plaintiff  in  the 
mean  time  to  pay  his  own  costs 
of  suit  and  the  expenses  of  the 
commission,  reserving  the  question 
as  to  the  defendants'  proportion? 
of  costs,  until  such  further  appli- 
cation, ib. 
5.  Costs  in  partition  in  this  Court 
are  charged  upon  the  parties  re- 
spectively, in  proportion  to  the 
value  of  their  respective  rights. 
S.  C.  306 


PARTNERSHIP. 

1.  Where  two  persons  are  joint  pro- 
prietors of  certain    patent   rights 
and  privileges,  as  for  navigating 
vessels  by  steam,  one  of  them,  on 
the  mere  ground  of  such  joint  in- 
terest or  concern,  is  not  responsi- 
ble for    any    special    contract   or 
undertaking  entered  into   by  the 
other   with  any  assignee  of  such 
right  or  privilege,  not  connected 
with  the  enjoyment  and  exercise 
of  their  common  privilege    under 
the  patent.     Lawrence  and  other? 
v.  Dale  and  others,  23 

2.  Equity  has  not  an  exclusive  juris- 
diction    between     copartners     in 
matters   of  account.     Duncan  v. 
Lyon,  351 

3.  An  action  of  account  lies  at  law, 
by    one   partner,  against   his  co- 
partner ;  and  it  seems  that  there 
is  no  good  reason  why  that  action 
is  not  sometimes  resorted  to,  in- 
stead of  a  bill  in  equity.  ib. 

4t.  An  action  of  covenant  at  law  l'\es 
by  one  partner  against 


INDEX 


6G3 


where  the  articles  contain  a  cove- 
nant to  account.  ib. 

o.  And  an  assumpsit  will  also  lie,  on 
a  promise  in  writing  by  one  part- 
ner, to  take  part  of  goods  bought, 
in  which  they  were  to  be  equally 
concerned  as  to  profit  and  loss. 
S.  C.  362 

6.  The  acts  of  a  majority  of  the 
partners  of  a  firm  bind  the  rest. 
Kirk  v.  Hodgson  and  others,  400 

*".  One  joint  partner  is  not  entitled, 
as  against  the  others,  to  a  com- 
pensation for  his  greater  or  more 
valuable  services,  in  regard  to  the 
common  concern,  unless  there  be 
a  special  agreement  to  that  effect. 
Bradford  v.  Kimbcrly  and  Brace, 

431 

8  But  where  the  several  joint  own- 
ers of  a  cargo  appoint  one  of  the 
part  owners  their  agent,  to  re- 
ceive and  sell  the  cargo,  and  dis- 
tribute the  proceeds,  he  is  entitled, 
under  such  special  agency,  to  a 
commission  or  compensation  for 
his  services,  as  a  factor  or 
agent,  in  the  same  manner  as  a 
stranger ;  and,  as  such  factor  or 
agent,  he  may  retain  the  goods  or 
their  proceeds  as  security,  not 
only  for  his  advances,  disburse- 
ments or  responsibilities  in  regard 
to  the  particular  property,  but  for 
the  balance  of  his  general  account. 

ib. 

PATENT. 
Vide  PARTNERSHIP,  1. 


I.  Parties. 

\.  To  a  bill  for  foreclosure  and  sale 
of  mortgaged  premises,  all  encum- 
brancers, or  persons  having  an 
interest,  existing  at  the  com- 
mencement of  the  suit,  subse- 
quent, as  well  as  prior  in  date  tc 
the  plaintiff's  mortgage,  must  be 
made  parties,  otherwise  they  will 
not  be  bound  by  the  decree. 
Haines  and  others  v.  Beach  ana 
others,  459 

2.  Creditors  and  legatees  are  excep- 
tions to  the  general  rule,  that  all 
persons    interested    in    the    fund 
must  be  made  parties.     Brown  v. 
Rickctts,  553 

3.  But  one  creditor,  or  one  legatee, 
may  sue  on  behalf  of  himself  and 
the  rest,  and  the  others  may  come 
in,  under  the  decree.  ib. 

4.  Where  there  are  several  legacies 
given,  which  are  to  be  increased 
or     diminished,    as     the     estate 
should  increase  or  diminish,  one 
legatee  may  file  a  bill  in  behalf  of 
himself,    and    the    other   legatees 
who    may    choose    to   come    in, 
against  the  executors,  for  an  ac- 
count and  payment.  ib. 

5.  But  where  the  bill  is  for  the  resi- 
due, all  the  residuary  legatees 
must  be  made  parties.  ib. 

Plea  of  other  parties,  vide  post,    IV 
24,  25. 

Adding  new  parties,    vide  PRACTJCE, 
I.   1. 


PETITION. 
Vide  PRACTICE,  III. 

PLEADING. 

I.  Parties. 
II.  Bill 

III.  Answer. 

IV.  Plea. 

V.  Demurrer 


II.  Bill 

6.  In  a  bill  of  discovery  for  matters 
material    to   the    defence    of  the 
party,  in  a  suit  at  law  against  him, 
the  nature  of  the  defence  at  law 
must  be    stated.     M'Intyre   ana 
others  \.  Mancius  and  Brown,  4.1 

7.  Where  one  of  several  defendants 
dies,  the   plaintiff  cannot   file   a 

519 


664 


INDEX. 


new  original  bill  against  the  rep- 
resentatives of  the  deceased  party 
and  the  others,  but  a  bill  of  revi- 
vor  only  against  such  representa- 
tives. Nicoll  and  others  v.  Roose- 
velt and  others,  60 

8.  Even   if  he  might  elect  to  file  a 
new  bill,  he  cannot  do  so  where 
an  answer  has  been  put  in  by  the 
party  since  deceased.  ib. 

9.  A  bill  of  review  on  matter  of  fact 
is  not  allowed  to  be  filed,  unless 
on  oath  of  the  discovery  of  new 
matter   or    evidence,    which    has 
come    to    light  since  the   decree, 
or  at  leist  since  publication,  and 
which  could  not  possibly  be  had 
or  used  at  the    time    publication 
passed.     Livingston  v.  Hubbs  and 
others,  124 

10.  Newly-discovered  evidence,  which 
goes  to  impeach  the  character  of 
witnesses  examined  in  the  origi- 
nal   suit,    or   of   cumulative    wit- 
nesses to  a  litigated  fact,  is  not 
sufficient.  ib. 

11.  The   matter   of  fact,    newly    dis- 
covered,  must   be   relevant,    and 
materially  affecting  the  ground  of 
the  decree.  ib. 

12.  A  bill  of  review   will    not  be  al- 
lowed, unless  the  decree  has  been 
performed   by   the   party  seeking 
the  review ;  but  where   he   is    in 
execution  for  the  non-payment  of 
the  money  and  costs  awarded   to 
be  paid  by  him,  and  which  he  is 
unable  to  pay,  it  seems  that  leave 
to  file  a  bill  of  review  will  not  be 
denied,  on  the    mere  ground  of 
non-performance  of  the  decree,  ib. 

13.  After    publication     passed,     and 
cause  set  down  for  hearing,  the 
plaintiff  will    not    be    allowed  to 
amend    his    bill,  by  adding   new 
charges ;  but   may  file  a   supple- 
mental   bill,  on    payment   of  the 
costs  since  publication.     Shepherd 
-   Merrill,  423 

Further  as  to  amendment  of  bill,  vide 
AMENDMENT,  1,  2.   Post,  IV.  25. 
520 


As  to  bill  of  discovery,  vide  DISCOVEEI 

Bill  take    yo  confesso,  vide  PRACTICE 
III. 

Vide  NE  EXEAT  REPUBLICA,  2.  4. 


III.  Answer. 

14.  When  a  defend  ant  answers  that  he 
has  not  any  knowledge  or  informa- 
tion of  a  fact  charged  in  the  plain- 
tiff's bill,  he  is  not  bound  to  de 
clare  his   belief  one  way  or    the 
other.      Morris   and    Mowatt   v. 
Parker,  297 

15.  It  is  only  when  he  states  a  fact 
upon  information,  or  hearsay,  that 
he  is  required  to  state  his  belief  or 
disbelief.  ib. 

16.  When  certain  documents  are  set 
forth,  historically,  in    the  stating 
part   of    the    bill,    the    defendant 
must  answer  to  the  fact  of  the  ex- 
istence of  such  documents,  accord- 
ing to  his  knowledge,  or  his  in- 
formation and  belief.  ib. 

17.  He  is  not  bound  to  answer  to  the 
facts  contained,  or  stated,  in  such 

documents,  unless  particularly 
stated,  distinct  from  the  docu- 
ments, if 

18.  Where   the    defendant    answers, 
that   he  is  "  utterly  and  entirely 
ignorant "  as  to  the  fact  to  which 
he  is  interrogated,  it  is  sufficient. 

ib. 

19.  A   purchaser,   claiming    as  bona 
Jide  purchaser,  must  deny  notice, 

although  it  be  not  charged.  Den- 
ning and  others  v.  Smith  ana 
others,  345 

Vide  post,  IV.  22,  23. 


IV.  Plea. 

20.  To  a  bill  by  several  tenants  in 
common  of  an  estate  in  Jamaica, 
against  their  co-tenant,  for  an  ac« 


INDEX. 


665 


count  of  the  profits,  Sic.,  it  is  not 
sufficient  for  the  defendant  to 
plead  that  the  title  to  the  estate 
may  be  brought  in  question,  and 
suggesting  that  he  has  an  exclu- 
sive title  to  the  whole,  and  ought 
not,  therefore,  to  be  sued  in  this 
Court.  The  defendant  ought  to 
set  forth  his  title  affirmatively, 
that  the  Court  may  determine 
whether  the  suit  ought  to  be 
stayed,  until  the  title  is  established 
at  law.  Livingston  and  others  v. 
Livingston,  51 

21  A  plea  must  rest  the  defence  on  a 
single  point,  creating,  of  itself,  a 
bar  to  the  suit.  Goodrich  v.  Pen- 
dleton,  384 

22.  A  plea  in  bar  of  the  statute  of  lim- 
itations is  bad,  unless    accompa- 
nied  by  an  answer  supporting  it, 
by  a  particular  denial  of  all   the 
facts  and  circumstances  charged 
in  the  bill,  and   which  in  equity 
may  avoid  the  statute.  ib. 

23.  As  where  the  bill  charged  the  de- 
fendant with  fraud,  and  a  breach 
of  trust;  and  he  pleaded  the  stat- 
ute of  limitations  in  bar;  and,  for 
answer  in  support  of  it,  denied,  in 
general    terms,   that   he   received 
the  money  mentioned  in  the  bill, 
as  trustee,  the  plea  was  held  bad, 
and  overruled  with  costs,  and  the 
defendant   ordered   to    answer  in 
six    weeks,  with  liberty  to  insist 
in  such  answer,  on  the  benefit  of 
the  statute.  ib. 

24.  A    plea   in    bar    naming    certain 
judgment  creditors,  not  parties  to 
the  bill,  without  stating    affirma- 
tively that  they  ought  to  be  made 
parties,  is  good  ;  but  if  the   plea 
simply  state  facts   from  which  it 
may  be  inferred  that  other  parties 
are    necessary,    without    naming 
them,   or   averring  that  they  are 
necessary  parties,  it    is    informal 
and    bad.     Cook    and    Kane    v. 
Mancius  and  Vischer,  427 

25.  A  plea  should  rest  the  defence  on 
a    single    point;    but    though    it 

VOL.  III.  66 


should  be  multifarious,  yet  if  it 
discloses  facts  which  form  a  fatal 
objection  to  the  bill,  as  the  names 
of  necessary  parties,  it  will  be 
suffered  to  stand,  with  liberty  to 
the  plaintiff  to  amend  his  bill,  by 
adding  the  parties,  on  payment 
of  the  costs  of  the  plea,  and  sub- 
sequent proceedings,  but  not  of 
the  useless  matter  in  the  plea.  ib. 

V.   Demurrer. 

2G.  Where  the  widow  of  a  deceased 
partner  filed  a  bill  against  the 
executors  of  her  husband,  for  a 
discovery  and  account  of  the 
copartnership  estate  and  effects, 
and  the  surviving  partner  demur- 
red to  that  part  of  the  bill  which 
sought  a  discovery,  alleging  that 
it  might  subject  him  to  penalties 
under  the  revenue  laws  of  the 
United  States,  but  without  showing 
how  or  for  what  cause  he  should 
incur  a  penalty  by  a  discovery, 
the  Court  overruled  the  demurrer ; 
such  a  general  allegation  not 
being  sufficient  to  bar  the  dis- 
covery, in  the  first  instance. 
Sharp  v.  Sharp,  407 

27.  Where  there  is  a  general  demur- 
rer to  the  whole  bill,  filed  for  dis- 
covery and  relief,  and  the  plain- 
tiff is  entitled  to  an  answer  to  any 
part  of  the  bill,  the  demurrer  will 
be  overruled.  Kimberty  \.  Sells 
and  others,  467 

TOWER. 

1.  A  feme  covert  may  execute,  by 
will  in  favor  of  her  husband,  a 
power  given  to  her  while  sole, 
over  her  real  estate.  Bradish  v. 
Gibbs  and  others,  53G 

*2.  Where  a  person  takes  by  the  ex- 
ecution of  a  power,  he  takes  un- 
der the  instrument  containing  the 
power.  S.  C.  550 

3.  A  husband  in  regard  to  a  devise 
to  him  by  his  wife,  in  executiop 
521 


666 


INDEX. 


of  a  power,  is  not  a   volunteer. 
S.  C.  550 

4  A  will  made  in  execution  of  a 
power  contained  in  an  ante-nup- 
tial contract,  still  retains  all  the 
properties  of  a  will,  and  is  revoca- 
ble at  the  pleasure  of  the  wife. 
S.  C.  551 

5.  Though  the  will  does  not  refer  to 
the  ante-nuptial  contract,  yet  it  is 
a  good  execution  of  the  power,  if 
it  can  have  no  operation  without 
the  power.  551 

G.  The  heir  at  law  will  be  decreed 
to  convey  the  legal  estate  to  the 
devisee.  ib. 

Power  reserved  to  a  wife  in  a  mar- 
riage settlement,  vide  BARON  AND 
FEME,  3,  4,  5,  6.  14,  15,  16, 
17,  18. 

Power  in  a  mortgage,  vide  BARON  AND 
FEME, 9.  MORTGAGE,  11. 14,  15, 
16,  17,  18,  19,  20,  21. 

Vide  AUTHORITY. 


PRACTICE. 

I.  Process  and  appearance. 
II.  Kill  taken  pro  confesso. 
III.  Petition. 
IV.  Motions  and  orders. 
V.    Taking  testimony,  feigned  issue, 
and     other     intermediate    pro- 
ceedings. 

VI.  H earing  and  rehearing. 

VII.  Reference    to    a    master     report, 

Exceptions. 


I.  Process  and  appearance. 

I.  ,Where  the  bill  has  been  amended, 
by  adding  new  defendants,  the 
plaintiff  may  have  process  of  sub- 
poena, and  proceed  against  them, 
in  the  usual  course.  Beekman 
and  others  v.  Waters  and  others- 

400 
522 


II.  Dill  taken  pro  confesso. 

2.  A  decree  entered   by  default,  "nd 
enrolled,  was  set  aside,  on  motion, 
on  payment  of  costs  ;  the  plaintiff 
having     been     previously    served 
with   notice   of  the   motion,   and 
copies  of  the  affidavits,  on  which 
it    was    intended    to    be    made. 
Bccjcman  v.  Peck,  415 

3.  A  decree  taken  pro  confesso,  on  a 
bill  for  a  foreclosure  of  a   mort- 
gage, after  a  sale,  and  a  delay  of 
more  than  six  months,  will  not  be 
set  aside,  unless  under  very  spe- 
cial circumstances.      Lansing   v. 
M'Pherson  and  others,  424 

Decree  by  default  against  infant,  vide 
DECREE,  1,  2. 


III.  Petition. 

4.  Application     under    the    statute, 
sess.  24.  ch.  30.  sect.  7.  for  infant 
trustees  to  convey,  &,c.,  must  be 
by  petition,  and   not  on  motion ; 
and  the  course  is,  to  direct  a  ref- 
erence   of    the    petition    to    the 
master,  to  examine,  and  ascertain 
the  facts,  and    report   the    same, 
with     his      opinion.     Ex    parte 
Quackenboss,  408 

5.  It  seems,  that  if  the  trust  is  not  in 
writing,  or  the  infant  has  an  in- 
terest, or  if  it  be  a  doubtful  case, 
the  cestuy  que  trust  will  be  put  to 
his  bill.  ib. 

6.  Where  a  bill  is  filed  by  an  execu- 
tor,  for   a  settlement  of  his   ac- 
counts, and  for  disclosures,  as  to 
distributions,  &c.,  the  defendants 
are  not  entitled,  on  petition,  to  an 
inspection    of    the  accounts  and 
vouchers  of  the  executor,  to  en- 
able   them    to    answer   the    bill. 
Denning  v.  Smith  and  others,  409 

Petition  for  rehearing,  vide  post,  VI. 
Vide  NE  EXEAT  REPUBLICA,  2. 


INDEX. 


667 


IV.  Motions  and  orders. 

7.  An  application  to  set  a«ide  a  de- 
cree entered  by  default,  need  not 
be  by  petition,  but  may  be  on  mo- 
tion, preceded  by  service  of  no- 
tice, with  copies  of  the  affidavits 
upon  which  it  is  founded.  Beek- 
man  v.  Peck,  415 

Rules  to  produce  witnesses  and  pass 
publication,  vide  post,  V.  8,  9, 
10,  11,  12.  14. 

Vide  NE  EXEAT  REPUBLICA,  2. 


V.    Taking    testimony,  feigned   issue, 
and  other  intermediate  proceedings. 

8.  Publication  is  passed  in  a  cause, 
by  filing  a  certificate  of  the  clerk 
of  the  entry  and  expiration  of  the 
previous  rules,  with  the    register 
or    assistant  register,  and    enter- 
ing a  rule  with  him  to  pass  publi- 
cation.    Brown  v.  Ricketts    and 
others,  63 

9.  Either  party,  who  has  examined 
witnesses,  may  give  rules  for  pub- 
lication •  but  the  rule  for  publica- 
tion can  be  entered  only  by  the 
party  who  has  given  the  previous 
rules.  ib. 

10.  The  defendant  cannot  pass  publi- 
cation on  the  plaintiff's  rules,  nor 
vice  versa.  ib. 

11.  Where    the   rule    to  show   cause 
why  publication  should  not  pass, 
has   been   enlarged   by   an   order 
for  that  purpose,  at  the  instance 
of  the  defendants,  and  that  order 
has  expired,  publication  may  pass, 
without   entering    a    further   rule 
with  the  register,  as  is  the  prac- 
tice, in  ordinary  cases,  on  the  ex- 
piration of  the  rule  to  show  cause. 
Moody  v.  Payne,  294 

I  2  If,  after  publication  has  so  passed, 
the  substance  of  the  testimony 
taken  on  a  material  point,  upon 
whicli  further  testimony  is  sought, 
bas  been  disclosed  to  the  defend- 


ant, it  is  too  late  to  move  to  open 
'    or  enlarge  the  rule,  on  affidavit,  ib 

13.  After  a  cause  had  been  regularly 
set  down   for  hearing,  on  the  bill 
and  answer,  the  plaintiff  was  al- 
lowed   to    file    a   replication,   on 
payment  of  costs.     Smith  v.  West, 

363 

14.  When,  after  publication  passed,  a 
party  files  articles,  and  gives  no- 
tice of  the   examination   of  wit- 
nesses, to  impeach  the  credit  of 
former     witnesses,    the     adverse 
party  may  examine    witnesses  to 
support  the  credit  of  his  witnesses 
who  have  already  deposed,  and  is 
entitled  to  a  rule  to  produce  wit- 
nesses, and  pass  publication,  as  in 
other  cases.      Troup  v.  Sherwood 
and  Wood,  558 

15.  A  copy  of  articles  filed  with  no- 
tice  of  the    examination    to  dis- 
credit witnesses,  must  be  served 
on  the  adverse    party,  within   14 
days  after  obtaining  a  copy  of  the 
depositions.  ib. 

16.  And  copies  of  the  interrogatories 
to   be    administered    to   the    wit- 
nesses, must  be  furnished  to  the 
adverse  party,  six  days,  at  least, 
before  the  day  assigned  for  their 
examination.  ib. 

17.  It  seems,  that  articles  to  impeach 
the  credit  of  witnesses  after  pub- 
lication passed,  may  be  filed  after 
the  cause  has  been  set  down  for 
hearing.  ib. 

18.  The  rule  of  evidence  as  to    im- 
peaching the   credit  of  witnesses 
who  have  been  examined,  should 
be  the  same  in  equity  as  at  law  : 
the  inquiry  ought  to  be  general, 
as  to  the  general  character  of  the 
witness  for  veracity.  ib. 

19.  But  it*seems,  that  on  a  special  ap- 
plication to  the  Court,  the  inquiry 
may  be  allowed  to  go  beyond  the 
general    credit,    as   to    particular 
facts  affecting  his  character,  pro- 
vided those  facts  are  not  material 
to  the  matter  in  issue  between  the 
parties.  it 

523 


668 


INDEX 


VI.  Hearing  and  rehearing. 

20.  Where  a  decretal  order  of  refer- 
ence to  a  master  to  take  an  ac- 
count  was    made    in    September, 
1817,  and  in  January,  1818,  the 
master,  after  hearing  both  parties, 
made  his  report,  and  in  June  fol- 
lowing  the  defendant   petitioned 
for  a  lehearing,  on  grounds  affect- 
ing  the    merits   of    the    decretal 
order,    the    Court,    although    the 
party  was  not  entitled  to  the  re- 
hearing ns  of  course  on  account 
of  the  delay  in  making  the  appli- 
cation, granted   the   petition,   on 
the    defendant's    paying    all    the 
costs  of  reference  under  the  order, 
and    depositing   fifty  dollars  with 
the  register,  towards  the  expenses 
of  the  rehearing,  in  case  the  de- 
cree   should    not     be    materially 
altered.     Consequa     \.    Fanning 
and  otkcrs,  364 

21.  On  a  petition  for  a  rehearing,  the 
party  applying  must  deposit  fifty 
dollars  with  the  register,  towards 
the  costs  of  the  rehearing,  in  case 
the  decree  should  not  be  materially 
varied.  ib. 

22.  On  a  rehearing,  the  cause  is  open 
to  the  party  who  petitions  for  the 
rehearing,  only  as  to  those  parts 
of  the  decree    complained   of  in 
the  petition ;  but  as  to  the  other 
party,  the  cause  is  open  as  to  the 
whole  matter.     Consequa  v.  Fan- 
ning and  others,  587 

VIT.  Reference  to  a  master,  report,  ex- 
ceptions. 

23.  No  exception  can  be  taken  to  a 
report  of  a  master,  unless  the  ob- 
jection was  made  to  him  previous 
to  his  signing  his  report.     Meth- 
odist Episcopal  Church  and  others 
v.  Jaqucs  and  others,  78 

24  A  party,  in  an  account  before  a 
master,  under  the  head  of  general 
expenses,  is  not  to  be  allowed  any 
thing  without  specifying  particu- 
lars, ib. 
524 


25.  Where  one  party  produces  a  pa 
per  to   charge  the  other    the  op« 
posite  party  may  use  it  in  his  dis 
charge ;  but   it   does    not    follow 
that  each  part  «*3  entitled  to  the 
same  credit.  ib. 

26.  Where  the  discharges  are  inaccu- 
rate in  some  instances,  and    are 
destitute    of    precision    and    cer- 
tainty, as  to   place    and    circum- 
stance, the  -vhole  may  be  rejected. 

ib. 

27.  Costs  on  exceptions  to  a  master's 
report   are  allowed  to  each  party 
on  the  exceptions  in  which  they 
have  each  respectively  prevailed. 

ib. 

28.  The  mistake  of  the  master  is  not 
like  the  error  of  the  judge,  and  is 
no  rule  as  to  costs.  ib. 

29.  An  order  of  reference,  for  an  ac- 
count   before  a  master,  cannot  be 
more  extensive  than    the    allega- 
tions   and  proofs   of  the   parties. 
Consequa  v.  Fanning  and  others, 

587 

30.  Where  the  charges  in  the  bill   are 
specific,   setting    forth   the    items 
of  the  account,  with  their  dates, 
on    an  order  of  reference  for  an 
account,  the  inquiry  is  not  open 
beyond      the      special       matters 
charged ;  although   the    bill   may 
contain  a  general  charge    at  the 
conclusion,  and  a  prayer  for  "  a 
full  account  concerning  the  prem- 
ises." ib. 

31.  Where  the  plaintiff  produces  and 
examines    a    witness    before    the 
master,  but  neglects  to  inquire  as 
to  a  particular  item  in  the  account, 
which  the  witness  alone  could  ex- 
plain, he  cannot,   afterwards,  ex- 
cept to  the  report  of  the  master 
as    incorrect,  in    regard    to  such 
item.     Barrow     and     others     v. 
Rhinelander,  614 

32.  Where  there  were  exceptions  on 
both  sides,  some  of  which   were 
allowed,  and  some  overruled,  and 
one  of  the  exceptions  was  modi- 
fied by  the  Court,  the  parties  re 


INDEX. 


spectively  were  allowed  the  costs 
of  the  exceptions  on  wiiich  they 
prevailed,  and  of  those  made  by 
the  opposite  party  which  were  over- 
ruled ;  but  costs  were  granted  to 
neither  party  on  the  exception 
which  was  modiiied.  S.  C.  627 
33.  On  a  reference  to  a  master,  aged 
witnesses,  residing  in  a  distant 
part  of  the  state,  may  be  examined 
on  interrogatories,  before  a  master 
in  the  county  where  they  reside, 
under  the  directions  of  the  master 
before  whom  the  reference  is  pend- 
ing ;  and  examinations  so  taken 
may  be  used  on  the  reference, 
saving  all  just  exceptions.  Mason 
v.  Roosevelt  and  others,  627 

Vide    APPEAL,    2.    EVIDENCE,   II.  12. 
INFANT,  6.  PARTITION,  2.  USURY,  3. 

PRESCRIPTION. 

Vide  NUISANCE. 

PROCESS. 
Vide  PRACTICE,  I.  1. 

PRO  CONFESSO. 
Vide  PRACTICE,  II. 

PUBLICATION. 
Vide  PRACTICE,  V.  8,  9,  10, 11,  12.  14. 

PURCHASER. 

Vide.     AUTHORITY.     DISCOVERY,      4. 
MORTGAGE,  I.  8,  9,  10.     NOTICE 


R. 

RECEIVER. 

When  the  bill  charges  an  executor  or 
trustee  with  abusing  his  trust,  &/c., 
an  injunction  will  not  be  awarded 
in  the  first  instance,  but  a  re- 
ceiver may  be  appointed.  Boyd 
and  Wickham  v.  Murray,  48 


REDEMPTION,  (EQUITY  OF.) 
Vide  MORTGAGE. 

REFERENCE. 
Vide  APPEAL,  1,  2.     PRACTICE,  VTI 

REHEARING. 
Vide  PRACTICE,  VI. 

REPLICATION. 
Vide  PRACTICE,  V.  13. 

REPORT. 
Vide  INFANT,  6. 

RES  INTER  ALIOS  ACT  A. 
Vide  EVIDENCE,  I.  1. 

REVIEW. 

Bill  Of,  mWcPLEADING.il.  9,  10,  11,  12 

REVIVOR. 
Bill  of,  vide  PLEADING,  II.  7,  8 

REVOCATION. 
Of  will,  vide  WILL 

S. 

SALE. 

Of  mortgaged  premises,  vide  INFANT, 
4,  5,  6. 

SECURITY. 

To  perform  decree,    vide  APPEAL,    I 
2,  3.     NE  EXEAT  REPUKI.ICA,  3. 

For  costs,  vide  COSTS,  II. 
625 


070 


INDEX. 


SEPARATION. 

Of  husband  and  wife,  vide  BARON  AND 
FEME,  11,  12,  13. 

SET-OFF. 

.  A  set-off  is  not  allowed  where  the 
demand  is  for  uncertain  damages 
arising  from  a  breach  of  covenant. 
Duncan  v.  Lyon,  351 

2.  A    Court   of    equity    follows    the 
same  general  rules  as  a  Court  of 
law,  as  to  set-off.  ib. 

3.  There  must  be  mutual  debts,  to 
authorize  a  set-off.  ih. 

4.  Mutual  debts  are  such  as  are  due 
to  and  from  the  same  persons,  in 
the  same  capacity.     Murray  and 
Murray    v.    Toland  and   Mead?, 

573 

5.  Matters  of  tort,  sounding  in  un- 
liquidated   damages,    cannot    be 
set  off.  S.  C.  575 

Vide  JURISDICTION,  5. 

SETTLEMENT. 

Vide    BARON    AND  FEME.      FRAUDS, 
(STATUTE  OF.) 

STATUTES  CONSTRUED,  EX- 
PLAINED, OR  CITED. 

1786,  April  4.     Sess.  9.  c.  27.     (Ex- 
ecutors and  Administrators,)  15G 

1787,  Feb.    26.     Sess.    10.    c.    44. 
(Fraudulent  Conveyances,)    488. 

502 

1801,  March  20.  Sess.  24.  c.  30. 
(Idiots  and  Lunatics.  Infant 
Trustees,)  147.  408 

Sess.  24.     c.  25. 

(Writs  of  Error,)  68 


-,  April  7.  Sess.  24.  c.  74.  (Ex- 
ecutors and  Administrators,  Dis- 
tributions,) 222 

1   April    8.    Sess.    24.    c.    183 

(Limitation  of  Actions,)  135.  190 
526 


1808,  April  11.  Sess.  31.  c.  216 
(Loans  and  Loan-Officers,)  33'J 

1813,  March  19.  Sess.  36.  c.  32. 
(Mortgages,)  74  129 

,  April  6.  Sess.  36.  c.  75.  (Ex- 
ecutors and  Administrators,  Dis- 


tributions,) 
-,  April     10.      Sess.     36.    c. 

(Court  of  Chancery,) 
-,  April     12.      Sess.    36.    c. 

(Costs,) 
Sess.    36.      c. 


22  J 
95. 
61 
96. 
117 
100. 

(Partition,)  295.  306 

1817,   April    15.     Sess.    40.    c.   251. 

(Compensation  to  Executors,  &c.) 


STAY  OF  PROCEEDINGS. 

Effect  of  an  appeal,  as  a  stay  of  pro- 
ceedings, vide  APPEAL. 


STREAM  OF  WATER. 

Vide  NUISANCE,  3,  4. 

SUBPOENA. 
Vide  PRACTICE,  I.  1 

SUPERCARGO. 
Vide  COMMISSIONS,  3. 

SUPPLEMENTAL  BILL. 
Vide  PLEADING,  II.  13 

T. 

TRUST  AND  TRUSTEE. 

I.  How  trusts  are  created*  and  their 
incidents.  Cestuy  que  trust,  ana 
trust  estate. 

II.    Trustee's  accounts.     Allowances  to, 
and  charges  against  trustee. 


INDEX 


(HI 


I.  How  trusts  are  created,  and  their 
incidents.  Cestuy  que  trust  and 
trust  estate. 

1.  No  lapse  of  time  is  a  bar  to  a  di- 
rect trust,  as  between  the  trustee 
and    ccstuy  que  trust.     Decouche 
and  others  v.  Savetier  and  others, 

216 

2.  But    where  a   person    takes  pos- 
session  of  property    in    his   own 
right,  and  is  afterwards,  by  mat- 
ter of  evidence  or   construction, 
changed  into  a  trustee,  lapse  of 
time  may  be  pleaded  in  bar.      ib. 

3.  Where  a  trust  is  created  for  the 
benefit  of  a  third  person,  though 
without  his    knowledge,  he    may 
afterwards  affirm  it,  and  enforce 
the    execution   of  it.     Duke    of 
Cumberland   and   others    v.   Cod- 
rington  and  others,  261 

4.  Application    under    the    statute, 
sess.  24.  c.  30.  sect.  7.,  for  infant 
trustees  to  convey,  &-c.,  must  be 
by  petition,  and  not  on    motion; 
and  the  course  is  to  direct  a  ref- 
erence   of    the    petition    to    the 
master  to  examine,  and  ascertain 
the    facts,   and    report   the    same 
with      his     opinion.      Ex     parte 
Quackenboss,  408 

5.  It  seems,  that  if  the  trust  is  not  in 
writing,  or  the  infant  has  an  in- 
terest, or  if  it  be  a  doubtful  case, 
the  ccstuy  que  trust  will  be  put  to 
his  bill.  ib. 

Misconduct  of  trustee,   and  abuse  of 
trust,  vide  INJUNCTION,  III.  3.  4. 


[I.    Trustee's  accounts.     Allowances  to, 
and  charges  against  trustee. 

G.  Where  R.,  while  a  confidential 
clerk  of  P.,  took  bonds  am-  notes 
belonging  to  P.,  witho  vt  his 
knowledge  or  permission,  which 
he  refused  to  return  or  g  ve  an 
account  ot,  he  was  held  aii  swera- 
bUf  for  the  whole  of  the  pj  ncipal 


and  interest  due  on  the  securi- 
ties, without  any  regard  to  his  dili- 
gence in  obtaining  payment,  or 
the  subsequent  solvency  of  the 
makers ;  it  appearing  that  the, 
bonds  and  notes  were  good  about 
the  time  that  they  were  so  taken 
by  R.  Barrow  and  others  v. 
Rhinelander,  Gil 

7.  A  person  who  receives  bonds  and 
notes  as  a  collateral  security  for 
a  debt,  is  bound  to  use  due  dili- 
gence, and  if  they  are  afterwards 
lost  through    his    negligence,    by 
the  insolvency  of  the  makers,  he 
is   chargeable    with  the    amount. 

ib. 

8.  Where  R.  received  a  bond  from 
P.    as   collateral    security    fn»-    a 
debt,  and  the    obligor  offered   to 
pay  him  the  amount  of  the  bond 
in  land,  at  a  certain  price,  as  the 
only  means  of  payment  in  his  pow- 
er, which  R.  refused  to   accept, 
although  requested  to  do  so  by  P., 
and  the  obligor  afterwards  became 
insolvent,  whereby  the  bond   wa.s 
wholly  lost,  R.  was  held  chargea 
ble  with  the  amount  of  the  value 
of  the  land  so  offered  him  in  pay- 
ment, and  which  he  unreasonably 
refused  to  accept.  ib. 

Vide  LOAN-OFFICERS,  1.  7. 


u. 

USURY. 

1.  Where  the  plaintiff  was  sued    at 
law,  on  notes  alleged  by  him  to 
be    usurious,    and    he   suffered   a 
verdict  and  judgment  to  be  taken 
against   him,    without    making    a 
defence,  or  applying  to  this  Court, 
on  a  bill  of  discovery,  in  due  se;i- 
«on,  he  was  held  concluded,  and 
not  entitled  to  relief.      Thompson 
v.  Berry  and  Van  Burcn,        393 

2.  An  assignment  of  a  debt,  usuri- 

527 


672 


INDEX. 


ous  in  its  creation,  to  a  third  per- 
son, who  has  knowledge  of  the 
original  transactions,  will  not 
cover  't  from  the  scrutiny  of  the 
Court.  Thompson  v.  Berry  and 
Van  Bur  en,  395 

3.  And  where  sufficient  ground  ap- 
peared to  support  the  charge  of 
usury,  a  reference  was  ordered  to 
a  master  to  take  an  account,  &,c. 

ib. 

4.  Utility  and  policy  of  usury.  S.  C. 

399 

V. 

VENDOR  AND  PURCHASER. 

Vide.  NOTICE.     FRAUDULENT  CONVEY- 
ANCE.    PURCHASER. 


VOLUNTARY  CONVEYANCE. 

Vide   FRAUDULENT    CONVEYANCE,   I. 
10,  11,  12,  13,  14,  15,  16,  17. 


w. 

WARD. 


WILL 

1.  After  making  his  will,  the  testa- 
tor conveyed  his  share  of  the  real 
estate  under  the    will  of  his  do- 
ceased    father,  and   which    made 
part  of  the  testator's    real    estate 
devised  to  his  children,  to    trus- 
tees,   to    pay    the     debts    of    his 
father,  and  then  in  trust  for  the 
devisees  of  his  father,  and  their 
representatives :  HM,    that    this 
subsequent  conveyance,  being  for 
the  mere  purpose  of  paying  debts, 
was  not  a  revocation  of  the  will 
beyond    that   particular   purpose, 
but  the  trust,  as   to  the  residue, 
was  for  the  devisees,  and  not  for 
the  heirs  of  the  testator.     Living- 
ston v.  Livingston  and  others,  148 

2.  A  subsequent  conveyance  by  the 
testator,  in  trust  for  the  payment 
of  debts,  and  the  residue  for  the 
testator,    and    such    persons     as 
would  have  held  the  same  before 
the  conveyance,  is  not  a  revoca- 
tion of  his  will,  beyond  such  spe- 
cial purpose.     S.  C.  155 

Will  of  feme  covert,  under  a  marriage 
settlement,  vide  BARON  AND  FEME, 
4,  5.  7.  14,  15,  16,  17,  18 


3f  the  Court   of  Chancery,  vide   IN-        Vide  DEVISE.     MORTGAGE,  I.   10. 

FANT,  2.  „ 


WASTE. 

/ 
J  tefe  INJUNCTION,  I.  1. 


WITNESS. 

Vide   EVIDENCE,    II.     PRACTICE,    V 
14,  15,  16,  H,  18,  19. 


END    OF    THE    THIRD    VOLUME. 


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